EXHIBIT 1.1
INFINITI SOLUTIONS LTD
__________________ Ordinary Shares
FORM OF
UNDERWRITING AGREEMENT
________, 2004
CIBC World Markets Corp.
RBC Capital Markets Corporation
XX Xxxxxxxxx+Co, LLC
as Representatives of the several
Underwriters named in Schedule I hereto
c/o CIBC World Markets Corp.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Infiniti Solutions Ltd., a Singapore corporation (the "Company"), and the
other persons listed on Schedule II hereto (each a "Selling Shareholder" and
collectively the "Selling Shareholders"), propose, subject to the terms and
conditions contained herein, to sell to you and the other underwriters named on
Schedule I to this Agreement (the "Underwriters"), for whom you are acting as
Representatives (the "Representatives"), an aggregate of ________ of the
Company's ordinary shares (the "Firm Shares"), $0.30 par value per share (the
"Ordinary Shares"). Of the _____ Firm Shares, _____ are to be issued and sold by
the Company and _____ are to be sold by the Selling Shareholders. The respective
amounts of the Firm Shares to be purchased by each of the several Underwriters
are set forth opposite their names on Schedule I hereto. In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional ___________ Ordinary Shares from the Company (the "Option Shares")
for the purpose of covering over-allotments in connection with the sale of the
Firm Shares. The Firm Shares and the Option Shares are collectively called the
"Shares."
The Company has prepared and filed in conformity with the requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission") a Registration Statement (as hereinafter
defined) on Form F-1 (No. 333-_____), including a preliminary prospectus
relating to the Shares, and such amendments thereof as may have been required to
the date of this Agreement. Copies of such Registration Statement (including all
amendments thereof) and of the related Preliminary Prospectus (as hereinafter
defined) have heretofore been delivered by the Company to you. The term
"Preliminary Prospectus" means any preliminary prospectus included at any time
as a part of the Registration Statement or filed with the Commission by the
Company pursuant to Rule 424(a) of the Rules. The term "Registration Statement"
as used in this Agreement means the initial registration
statement (including all exhibits, financial schedules, as amended at the time
and on the date it becomes effective (the "Effective Date"), including the
information (if any) contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and deemed to be part thereof at
the time of effectiveness pursuant to Rule 430A of the Rules. If the Company has
filed an abbreviated registration statement to register additional Shares
pursuant to Rule 462(b) under the Rules (the "462(b) Registration Statement"),
then any reference herein to the Registration Statement shall also be deemed to
include such 462(b) Registration Statement. The term "Prospectus" as used in
this Agreement means the prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Rules is relied
on, the term Prospectus shall also include the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules.
The Company and the Selling Shareholders understand that the Underwriters
propose to make a public offering of the Shares, as set forth in and pursuant to
the Prospectus, as soon after the Effective Date and the date of this Agreement
as the Representatives deem advisable. The Company and the Selling Shareholders
hereby confirm that the Underwriters and dealers have been authorized to
distribute or cause to be distributed each Preliminary Prospectus and are
authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
1. Sale, Purchase, Delivery and Payment for the Shares. On the basis of
the representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company and each of the Selling Shareholders agree,
severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from
the Company and each of the Selling Shareholders, at a purchase price of
$_____ per share (the "Initial Price"), that proportion of the number of
Firm Shares set forth on Schedule II to this Agreement opposite the name
of the Company or such Selling Shareholder, as the case may be, which the
number of Firm Shares set forth on Schedule I to this Agreement opposite
the name of such Underwriter bears to the total number of Firm Shares,
subject to adjustment in accordance with Section 9 hereof and subject, in
each case, to such adjustments among the Underwriters as the
Representatives in their sole discretion shall make to eliminate any sales
or purchases of fractional shares.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representatives
to eliminate fractions) of the total number of Option Shares to be
purchased by the Underwriters as such Underwriter is purchasing of the
Firm Shares. Such option may be exercised only to cover over-allotments in
the sales of the Firm Shares by the Underwriters and may be exercised in
whole or in part at any time on or before 12:00 noon, New York City time,
on the business day before the Firm Shares Closing Date (as defined
below), and from time to time thereafter within 30 days after the date of
this Agreement, in each case upon written or facsimile notice, or verbal
or telephonic notice confirmed by written or facsimile notice, by the
Representatives to the Company no later than 12:00 noon, New York City
time, on the business day before
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the Firm Shares Closing Date or at least two business days before the
Option Shares Closing Date (as defined below), as the case may be, setting
forth the number of Option Shares to be purchased and the time and date
(if other than the Firm Shares Closing Date) of such purchase.
(c) Payment of the purchase price for, and delivery of
certificates for, the Firm Shares shall be made at the offices of Xxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, at
10:00 a.m., New York City time, on the third business day following the
date of this Agreement or at such time on such other date, not later than
ten (10) business days after the date of this Agreement, as shall be
agreed upon by the Company and the Representatives (such time and date of
delivery and payment are called the "Firm Shares Closing Date"). In
addition, in the event that any or all of the Option Shares are purchased
by the Underwriters, payment of the purchase price, and delivery of the
certificates, for such Option Shares shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the
Representatives and the Company, on the date of delivery as specified in
the notice from the Representatives to the Company (such time and date of
delivery and payment are called the "Option Shares Closing Date"). The
Firm Shares Closing Date and any Option Shares Closing Date are called,
individually, a "Closing Date" and, together, the "Closing Dates."
(d) Payment shall be made to the Company and the Selling
Shareholders by wire transfer of immediately available funds to the
accounts specified by the Company or the Selling Shareholders,
respectively, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Shares to be
purchased by them.
(e) Certificates evidencing the Shares shall be registered in such
names and shall be in such denominations as the Representatives shall
request at least two full business days before the Firm Shares Closing
Date or, in the case of Option Shares, on the day of notice of exercise of
the option as described in Section 1(b) and shall be delivered by or on
behalf of the Company to the Representatives through the facilities of the
Depository Trust Company ("DTC") for the account of such Underwriter. The
Company will cause the certificates representing the Shares to be made
available for checking and packaging, at such place as is designated by
the Representatives, on the full business day before the Firm Shares
Closing Date (or the Option Shares Closing Date in the case of the Option
Shares).
2. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Firm Shares Closing Date and as of each Option Shares Closing Date (if any), as
follows:
(a) On the Effective Date, the Registration Statement complied,
and on the date of the Prospectus, the date any post-effective amendment
to the Registration Statement becomes effective, the date any supplement
or amendment to the Prospectus is filed with the Commission and each
Closing Date, the Registration Statement and the Prospectus (and any
amendment thereof or supplement thereto) will comply, in all material
respects, with the requirements of the Securities Act and the Rules and
the
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Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
rules and regulations of the Commission thereunder. The Registration
Statement did not, as of the Effective Date, contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and on the Effective Date and the other dates referred to
above neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, contained or will contain, as the
case may be, any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading. When any related preliminary
prospectus was first filed with the Commission (whether filed as part of
the Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Rules) and when any amendment thereof or supplement thereto
was first filed with the Commission, such preliminary prospectus as
amended or supplemented complied in all material respects with the
applicable provisions of the Securities Act and the Rules and did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading. If applicable, each Preliminary
Prospectus and the Prospectus 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. If Rule 434 is used, the
Company will comply with the requirements of Rule 434 and the Prospectus
shall not be "materially different," as such term is used in Rule 434,
from the Prospectus included in the Registration Statement at the time it
became effective. Notwithstanding the foregoing, none of the
representations and warranties in this paragraph 2(a) shall apply to
statements in, or omissions from, the Registration Statement or the
Prospectus made in reliance upon, and in conformity with, information
herein or otherwise furnished in writing by the Representatives on behalf
of the several Underwriters for use in the Registration Statement or the
Prospectus. With respect to the preceding sentence, the parties
acknowledge that the only information furnished in writing by the
Representatives on behalf of the several Underwriters for use in the
Registration Statement or the Prospectus is the statements contained in
paragraphs 1, 2, 4 and 11 under the caption "Underwriting" in the
Prospectus.
(b) The Registration Statement is effective under the Securities
Act and no stop order preventing or suspending the effectiveness of the
Registration Statement or suspending or preventing the use of the
Prospectus has been issued by the Commission and, to the Company's
knowledge, no proceedings for that purpose have been instituted or are
threatened under the Securities Act. Any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) of the Rules has been
or will be made in the manner and within the time period required by such
Rule 424(b).
(c) The audited consolidated financial statements of the Company
and its Subsidiaries (including all notes and schedules thereto) included
in the Registration Statement and Prospectus present fairly in all
material respects the financial position of the Company and its
consolidated Subsidiaries at the dates indicated and the statements of
operations, shareholders' equity and cash flows of the Company and its
consolidated Subsidiaries for the periods specified; and such financial
statements and related schedules
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and notes thereto, and the unaudited financial information filed with the
Commission as part of the Registration Statement, have been prepared in
conformity with generally accepted accounting principles, consistently
applied throughout the periods involved, and all adjustments necessary for
a fair presentation of the results for such periods have been made. The
summary and selected financial data included in the Prospectus present
fairly the information shown therein as at the respective dates and for
the respective periods specified and have been presented on a basis
consistent with the consolidated financial statements set forth in the
Prospectus and other financial information. The pro forma financial
information included in the Registration Statement and the Prospectus
present fairly the information shown therein, has been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial information and has been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(d) KPMG, whose report is filed with the Commission as a part of
the Registration Statement, are and, during the periods covered by their
report, were independent public accountants as required by the Securities
Act and the Rules. Except as described in the Registration Statement and
the Prospectus and as preapproved in accordance with the requirements set
forth in Section 10A of the Exchange Act, KPMG has not engaged in any
"prohibited activities" (as defined in Section 10A of the Exchange Act) on
behalf of the Company.
(e) The Company and each of Viko Technology Inc., a California
corporation ("Viko"), and Automated Technology (Phil) Inc., a Philippines
corporation ("ATEC" and, together with Viko, the "Subsidiaries"), is duly
organized, validly existing and, with respect to jurisdictions that
recognize the concept of good standing, in good standing under the laws of
its respective jurisdiction of incorporation or organization. The Company
and each of its Subsidiaries is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which the
nature of the business conducted by it or location of the assets or
properties owned, leased or licensed by it requires such qualification,
except for such jurisdictions where the failure to so qualify individually
or in the aggregate would not have a material adverse effect on the
assets, properties, condition, financial or otherwise, or in the results
of operations, business affairs or business prospects of the Company and
its Subsidiaries considered as a whole (a "Material Adverse Effect"); and,
to the knowledge of the Company, no proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification.
(f) The Company and each of its Subsidiaries have all requisite
corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies or any other person or entity
(collectively, the "Permits"), to own, lease and license their assets and
properties and conduct their business, all of which are valid and in full
force and effect, except where the lack of such Permits, individually or
in the aggregate, would not have a Material Adverse Effect. The Company
and each of its Subsidiaries have fulfilled and performed in all material
respects all of their material obligations with
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respect to such Permits and no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the Company
thereunder. Except as may be required under the Securities Act and state
and foreign Blue Sky laws, no other Permits are required to enter into,
deliver and perform this Agreement and to issue and sell the Shares to be
issued and sold by the Company.
(g) The Company and each of its Subsidiaries own or possess
legally enforceable rights to use all patents, patent rights, inventions,
trademarks, trademark applications, trade names, service marks,
copyrights, copyright applications, licenses, know-how and other similar
rights and proprietary knowledge (collectively, "Intangibles") necessary
for the conduct of their businesses. Neither the Company nor any of its
Subsidiaries has received any notice of, or is not aware of, any
infringement of or conflict with asserted rights of others with respect to
any Intangibles.
(h) None of the Company and or any of its Subsidiaries owns any
real property. The Company and each of its Subsidiaries have good and
marketable title to all other property owned by them, in each case free
and clear of all liens, encumbrances, claims, security interests and
defects, except such as do not materially affect the value of such
property and do not materially interfere with the use made or proposed to
be made of such property by the Company and its Subsidiaries. All property
held under lease by the Company and its Subsidiaries is held under valid,
existing and enforceable leases, free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are
not material and do not materially interfere with the use made or proposed
to be made of such property by the Company and its Subsidiaries.
Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there has not been any
Material Adverse Effect; (ii) neither the Company nor any of its
Subsidiaries has sustained any loss or interference with its assets,
businesses or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or any court or legislative or other
governmental action, order or decree which would have a Material Adverse
Effect; and (iii) since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, neither the Company nor any
of its Subsidiaries has (A) issued any securities (other than the issuance
and sale of the Shares and the grant of options or the issuance of
Ordinary Shares upon the exercise of options pursuant to the Company's
stock option plans) or incurred any liability or obligation, direct or
contingent, for borrowed money, except such liabilities or obligations
incurred in the ordinary course of business, (B) entered into any
transaction not in the ordinary course of business, except as set forth in
the Prospectus or (C) declared or paid any dividend or made any
distribution on any shares of its stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any
shares of its capital stock, except as set forth in the Prospectus.
(i) There is no document, contract or other agreement required to
be described in the Registration Statement or Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed
as required by the Securities Act or Rules. Each description of a
contract, document or other agreement in the Registration
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Statement and the Prospectus accurately reflects in all material respects
the terms of the underlying contract, document or other agreement. Except
as set forth in the Prospectus, each contract, document or other agreement
described in the Registration Statement and Prospectus or listed in the
Exhibits to the Registration Statement is in full force and effect and is
valid and enforceable by and against the Company or its Subsidiary, as the
case may be, in accordance with its terms. Neither the Company nor any of
its Subsidiaries, if a Subsidiary is a party, nor to the knowledge of the
Company, any other party is in default in the observance or performance of
any term or obligation to be performed by it under any such agreement, and
no event has occurred which with notice or lapse of time or both would
constitute such a default, in any such case which default or event,
individually or in the aggregate, would have a Material Adverse Effect. No
default exists, and no event has occurred which with notice or lapse of
time or both would constitute a default, in the due performance and
observance of any term, covenant or condition, by the Company or any of
its Subsidiaries, if a Subsidiary is a party thereto, of any other
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which Company or its properties or business or a Subsidiary
or its properties or business may be bound or affected which default or
event, individually or in the aggregate, would have a Material Adverse
Effect.
(j) Neither the Company nor any of its Subsidiaries is in
violation of any term or provision of its Memorandum and Articles of
Association, charter or bylaws or other organizational instrument or of
any franchise, license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation, individually or in
the aggregate, would have a Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) Except as set forth in the Prospectus, neither the execution,
delivery and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby (including,
without limitation, the issuance and sale by the Company of the Shares)
will give rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or require any
consent or waiver under, or result in the execution or imposition of any
lien, charge or encumbrance upon any properties or assets of the Company
or any of its Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which either the
Company or any of its Subsidiaries or any of their properties or
businesses is bound, or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation applicable to the Company or any of its
Subsidiaries or violate any provision of Memorandum and Articles of
Association, charter or bylaws or other organizational instrument of the
Company or any of its Subsidiaries, except for such consents or waivers
which have already been obtained and are in full force and effect.
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(m) As of June 30, 2004, the Company had authorized and
outstanding capital stock as set forth under the caption "Capitalization"
in the Prospectus. The certificates evidencing the Shares are in due and
proper legal form and have been duly authorized for issuance by the
Company. Except as set forth in the Prospectus, all of the issued and
outstanding Ordinary Shares have been duly and validly issued and are
fully paid and nonassessable. There are no statutory preemptive or other
similar rights to subscribe for or to purchase or acquire any Ordinary
Shares or any such rights pursuant to the Company's Memorandum and
Articles of Association or any agreement or instrument to or by which the
Company or any of its Subsidiaries is a party or bound. The Shares, when
issued and sold pursuant to this Agreement, will be duly and validly
issued, fully paid and nonassessable and none of them will be issued in
violation of any preemptive or other similar right. Except as disclosed in
the Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and there is
no commitment, plan or arrangement to issue, any share of capital stock of
the Company or any of its Subsidiaries or any security convertible into,
or exercisable or exchangeable for, such stock. The Ordinary Shares
conform in all material respects to all statements in relation thereto
contained in the Registration Statement and the Prospectus. All
outstanding shares of capital stock of each of the Company's Subsidiaries
have been duly authorized and validly issued, and are fully paid and
nonassessable and are owned directly by the Company or by another
wholly-owned subsidiary of the Company free and clear of any security
interests, liens, encumbrances, equities or claims, other than those
described in the Prospectus.
(n) No holder of any security of the Company has any right, which
has not been waived, to have any security owned by such holder included in
the Registration Statement or to demand registration of any security owned
by such holder for a period of 180 days after the date of this Agreement.
Each director or executive officer of the Company who is also a holder of
Company securities, and each shareholder of the Company listed on Schedule
III has delivered to the Representatives his enforceable written lock-up
agreement in the form attached to this Agreement as Exhibit A hereto
("Lock-Up Agreement").
(o) All necessary corporate action has been duly and validly taken
by the Company to authorize the execution, delivery and performance of
this Agreement, the issuance and sale of the Shares by the Company, the
conversion of all of the Company's outstanding A ordinary shares and the
redemption of all of the Company's outstanding Redeemable A preference
shares. This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles.
(p) Neither the Company nor any of its Subsidiaries is involved in
any labor dispute nor, to the knowledge of the Company, is any such
dispute threatened, which dispute would have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries is aware of any existing
or imminent labor disturbance by the employees of
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any of their principal suppliers or contractors which would have a
Material Adverse Effect. The Company is not aware of any threatened or
pending litigation between the Company or any of its Subsidiaries and any
of its executive officers which, if adversely determined, could have a
Material Adverse Effect and has no reason to believe that such officers
will not remain in the employment of the Company or its Subsidiaries.
(q) No transaction has occurred between or among the Company and
any of its officers or directors, shareholders or any affiliate or
affiliates of any such officer or director or shareholder that is required
to be described in and is not described in the Registration Statement and
the Prospectus.
(r) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected
to cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation of the price
of the Ordinary Shares or any security of the Company to facilitate the
sale or resale of any of the Shares.
(s) The Company and each of its Subsidiaries has filed all
Federal, state, local and foreign tax returns which are required to be
filed through the date hereof (and for which the failure to file such
returns, individually or the aggregate, would have a Material Adverse
Effect), which returns are true and correct in all material respects or
has received timely extensions thereof, and has paid all taxes shown on
such returns and all assessments received by it to the extent that the
same are material and have become due. There are no tax audits or
investigations pending, which if adversely determined would have a
Material Adverse Effect; nor are there any material proposed additional
tax assessments against the Company or any of its Subsidiaries.
(t) The Shares have been duly authorized for quotation on the
National Association of Securities Dealers Automated Quotation ("Nasdaq")
National Market System, subject to notice of issuance. A registration
statement has been filed on Form 8-A pursuant to Section 12 of the
Exchange Act, which registration statement complies in all material
respects with the Exchange Act.
(u) The Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Ordinary Shares under
the Exchange Act or the quotation of the Ordinary Shares on the Nasdaq
National Market, nor has the Company received any notification that the
Commission or the Nasdaq National Market is contemplating terminating such
registration or quotation.
(v) The books, records and accounts of the Company and its
Subsidiaries accurately and fairly reflect in all material respects, in
reasonable detail, the transactions in, and dispositions of, the assets
of, and the results of operations of, the Company and its Subsidiaries.
The Company and each of its Subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally
accepted accounting principles and to maintain asset
9
accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses in which they
are engaged or propose to engage after giving effect to the transactions
described in the Prospectus; all policies of insurance and fidelity or
surety bonds insuring the Company or any of its Subsidiaries or the
Company's or its Subsidiaries' respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and each
of its Subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and neither the Company nor any
Subsidiary of the Company has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that is not materially
greater than the current cost.
(x) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated required to be obtained or performed by
the Company (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares for public offering by the Underwriters
under the state securities or Blue Sky laws) has been obtained or made and
is in full force and effect.
(y) There are no affiliations with the NASD among the Company's
officers, directors or, to the knowledge of the Company, any five percent
or greater shareholder of the Company, except as set forth in the
Registration Statement or otherwise disclosed in writing to the
Representatives.
(z) (i) Each of the Company and each of its Subsidiaries is in
compliance in all material respects with all rules, laws and regulations
relating to the use, treatment, storage and disposal of toxic substances
and protection of health or the environment ("Environmental Law") which
are applicable to its business; (ii) neither the Company nor any of its
Subsidiaries has received any notice from any governmental authority or
third party of an asserted claim under Environmental Laws; (iii) each of
the Company and each of its Subsidiaries has received all permits,
licenses or other approvals required of it under applicable Environmental
Laws to conduct its business and is in compliance with all terms and
conditions of any such permit, license or approval, except as would not,
individually or in the aggregate, have a Material Adverse Effect; (iv) to
the knowledge of the Company, no facts currently exist that will require
the Company or any of its Subsidiaries to make future material capital
expenditures to comply with Environmental Laws; and (v) no property which
is or has been owned, leased or occupied by the Company or any of its
Subsidiaries has been designated as a Superfund site pursuant to the
Comprehensive Environmental Response, Compensation of Liability Act of
1980, as
10
amended (42 U.S.C. Section 9601, et. seq.) or otherwise designated as a
contaminated site under applicable state or local law. Neither the Company
nor any of its Subsidiaries has been named as a "potentially responsible
party" under the CER, CLA 1980.
(aa) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries, in the
course of which the Company identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not,
individually or in the aggregate, have a Material Adverse Effect.
(bb) The Company is not and, after giving effect to the offering
and sale of the Shares and the application of proceeds thereof as
described in the Prospectus, will not be an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(cc) The Company or any other person associated with or acting on
behalf of the Company including, without limitation, any director,
officer, agent or employee of the Company or any of its Subsidiaries, has
not, directly or indirectly, while acting on behalf of the Company or its
Subsidiaries (i) used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity; (ii) made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; (iii) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any other
unlawful payment.
(dd) Except as described in the Registration Statement, the Company
has not sold or issued any Ordinary Shares during the six-month period
preceding the date of the Registration Statement first submitted to the
SEC, including any sales pursuant to Rule 144A under, or Regulations D or
S of, the Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(ee) The Company and each of its Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the U.S. Employee Retirement Income Security Act of 1974 ("ERISA") and the
regulations and published interpretations thereunder with respect to each
"plan" as defined in Section 3(3) of ERISA and such regulations and
published interpretations in which its employees are eligible to
participate and each such plan is in compliance in all material respects
with the presently applicable provisions of ERISA and such regulations and
published interpretations. No "Reportable Event" (as defined in 12 ERISA)
has occurred with respect to any "Pension Plan" (as defined in ERISA) for
which the Company could have any liability.
11
(ff) The Company is in compliance with applicable provisions of the
Xxxxxxxx-Xxxxx Act that are effective and is actively taking steps to
ensure that it will be in compliance with other applicable provisions of
the Xxxxxxxx-Xxxxx Act upon the effectiveness of such provisions.
(gg) The statistical and market related data included in the
Registration Statement are based on or derived from sources that the
Company believes to be reliable and accurate.
(hh) The operations of the Company and its Subsidiaries are and
have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines issued,
administered or enforced by any governmental agency (collectively, the
"Money Laundering Laws") and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries with respect to the Money
Laundering Laws is pending, or to the best of the Company's knowledge,
threatened.
(ii) Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its Subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any Subsidiary,
joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(jj) Each of the Company, its directors and officers has not
distributed and will not distribute prior to the later of (i) the Firm
Shares Closing Date, or the Option Shares Closing Date, and (ii)
completion of the distribution of the Shares, any offering material in
connection with the offering and sale of the Shares other than any
Preliminary Prospectus, the Prospectus, the Registration Statement and
other materials, if any, permitted by the Securities Act.
3. Representations and Warranties of the Selling Shareholders.
(a) Each of the Selling Shareholders, severally and not jointly,
represents and warrants to each Underwriter as of the date hereof, and as
of the Firm Shares Closing Date, as follows:
(i) Such Selling Shareholder has caused certificates for the
number of Shares to be sold by such Selling Shareholder hereunder to
be delivered to American Stock Transfer & Trust Company (the
"Custodian"), endorsed in blank or with blank stock powers duly
executed, with a signature appropriately guaranteed, such
certificates to be held in custody by the Custodian for delivery,
pursuant to the provisions of
12
this Agreement and an agreement dated ____________ among the
Custodian and the Selling Shareholders substantially in the form
attached hereto as Exhibit B (the "Custody Agreement").
(ii) This Agreement and the Custody Agreement have each been
duly authorized, executed and delivered by or on behalf of such
Selling Shareholder and, assuming due authorization, execution and
delivery by the other parties thereto, constitutes the valid and
legally binding agreement of such Selling Shareholder, enforceable
against such Selling Shareholder in accordance with its terms.
(iii) The execution and delivery by such Selling Shareholder
of this Agreement and the performance by such Selling Shareholder of
its obligations under this Agreement, including the sale and
delivery of the Shares to be sold by such Selling Shareholder and
the consummation of the transactions contemplated herein and
compliance by such Selling Shareholder with its obligations
hereunder, do not and will not, whether with our without the giving
of notice or the passage of time or both, (A) violate or contravene
any provision of the charter or bylaws or other organizational
instrument of such Selling Shareholder, if applicable, or any
applicable law, statute, regulation, or filing or any agreement or
other instrument binding upon such Selling Shareholder or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Shareholder, (B) 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 shares to be sold by such Selling Shareholder or any property or
assets of such Selling Shareholder pursuant to the terms of any
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 or (C)
require any consent, approval, authorization or order of or
registration or filing with any court or governmental agency or body
having jurisdiction over it, except such as may be required under
the Securities Act or by the Blue Sky laws of the various states in
connection with the offer and sale of the Shares which have been or
will be effected in accordance with this Agreement.
(iv) Such Selling Shareholder is, and on the Firm Shares
Closing Date will be, the record owner of, or has a valid security
entitlement (within the meaning of Section 8-105 of the New York
Uniform Commercial Code) in respect of, the Shares to be sold by
such Selling Shareholder free and clear of any lien, claim, security
interest or other encumbrance, including, without limitation, any
restriction on transfer, except as otherwise described in the
Registration Statement and Prospectus.
(v) Such Selling Shareholder has, and on the Firm Shares
Closing Date will have, full legal right, power and authority, and
any approval required by law, to sell, assign, transfer and deliver
the Shares to be sold by such Selling Shareholder in the manner
provided by this Agreement.
13
(vi) Upon delivery of and payment for the Shares to be sold
by such Selling Shareholder pursuant to this Agreement, assuming
each Underwriter has no notice of any adverse claim (within the
meaning of Section 8-105 of the New York Uniform Commercial Code) to
such Shares, the several Underwriters will receive valid and
unencumbered title to such Shares free and clear of any lien, claim,
mortgage, pledge, security interest or other encumbrance, and, under
the New York Uniform Commercial Code, an action based on an adverse
claim to such title to such Shares, whether framed in conversion,
replevin, constructive trust, equitable lien or other theory, may
not be asserted against the several Underwriters.
(vii) All information relating to such Selling Shareholder
furnished in writing by such Selling Shareholder expressly for use
in the Registration Statement and Prospectus is true, correct, and
complete, and does not contain any untrue statement of a material
fact or omit to state any material fact necessary to make such
information not misleading.
(viii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to or that 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 Shares.
(ix) The representations and warranties of such Selling
Shareholder in the Custody Agreement are true and correct.
(b) The Additional Selling Shareholder (as defined in section 4(k)
below) also represents and warrants to each Underwriter as of the date
hereof, and as of the Firm Shares Closing Date, as follows:
14
(i) Such Additional Selling Shareholder has granted an
irrevocable power of attorney substantially in the form attached
hereto as Exhibit C (the "Power of Attorney") to the persons named
therein, on behalf of such Additional Selling Shareholder, to
execute and deliver this Agreement and any other document necessary
or desirable in connection with the transactions contemplated hereby
and to deliver the Shares to be sold by such Additional Selling
Shareholder pursuant hereto.
(ii) Such Power of Attorney has been duly authorized,
executed and delivered by or on behalf of such Additional Selling
Shareholder and, assuming due authorization, execution and delivery
by the other parties thereto, constitutes the valid and legally
binding agreement of such Additional Selling Shareholder,
enforceable against such Additional Selling Shareholder in
accordance with its terms.
Any certificate signed by an officer of any Selling Shareholder and
delivered to the Underwriters or counsel for the Underwriters in connection with
the offering of the Shares shall be deemed a representation and warranty by such
Selling Shareholder, as to matters covered thereby, to each Underwriter.
4. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) Notification that the Registration Statement has become
effective shall have been received by the Representatives and the
Prospectus shall have been timely filed with the Commission in accordance
with Section 5(a)(i) of this Agreement.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
the satisfaction of the Commission and the Representatives. If the Company
has elected to rely upon Rule 430A, Rule 430A information previously
omitted from the effective Registration Statement pursuant to Rule 430A
shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the prescribed time period and the Company shall have
provided evidence satisfactory to the Underwriters of such timely filing,
or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements
of Rule 430A. If the Company has elected to rely upon Rule 434, a term
sheet shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company and the
Selling Shareholders contained in this Agreement and in the certificates
delivered pursuant to Section 4(d) and 4(e) shall be true and correct when
made and on and as of the Firm Shares Closing Date and, as applicable, the
Option Shares Closing
15
Date as if made on such date. The Company and the Selling Shareholders
shall have performed in all material respects all covenants and agreements
and satisfied all the conditions contained in this Agreement required to
be performed or satisfied by them at or before each such applicable
Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive officer and the chief financial officer of the
Company, on behalf of the Company, to the effect that: (i) the
representations, warranties and agreements of the Company in this
Agreement, including without limitation Section 2(a), were true and
correct when made and are true and correct as of such Closing Date; (ii)
the Company has performed all covenants and agreements and satisfied all
conditions contained herein; (iii) they have carefully examined the
Registration Statement and the Prospectus and, to their knowledge, since
the Effective Date no event has occurred which should have been set forth
in a supplement or otherwise required an amendment to the Registration
Statement or the Prospectus; and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and, to their
knowledge, no proceedings for that purpose have been instituted or are
pending under the Securities Act.
(e) The Representatives shall have received on the Firm Shares
Closing Date a certificate, addressed to the Representatives and dated
such Firm Shares Closing Date, of each Selling Shareholder to the effect
that: (i) the representations and warranties of such Selling Shareholder
in this Agreement, including without limitation Section 3(a)(vii), were
true and correct when made and are true and correct as of such Firm Shares
Closing Date; and (ii) such Selling Shareholder has performed all
covenants and agreements and satisfied all conditions contained herein.
(f) The Representatives shall have received, at the time this
Agreement is executed and on each Closing Date a signed letter from KPMG,
addressed to the Representatives and dated, respectively, the date of this
Agreement and each such Closing Date, in form and substance reasonably
satisfactory to the Representatives 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
Prospectus.
(g) The Representatives shall have received on each Closing Date
from Xxxxxx & Xxxxxxx XXX, Xxxxxx Xxxxxx special counsel for the Company,
an opinion, addressed to the Representatives and dated such Closing Date,
in the form set forth on Appendix A.
16
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel
satisfactory to the Representatives as to matters which are governed by
laws other than the laws of the States of California and New York and the
Federal laws of the United States. Copies of such certificates and other
opinions shall be furnished to the Representatives and counsel for the
Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
and related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specified in the foregoing
opinion), on the basis of the foregoing, no facts have come to the
attention of such counsel which lead such counsel to believe that (i) the
Registration Statement at the time it became effective (except with
respect to the financial statements and notes and schedules thereto and
other financial data, as to which such counsel need express no belief)
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 Prospectus as amended or
supplemented (except with respect to the financial statements, notes and
schedules thereto and other financial data, as to which such counsel need
make no statement) on the date thereof contained any untrue statement of a
material fact or omitted 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.
(h) The Representatives shall have received on each Closing Date
from Drew and Xxxxxx LLC, Singapore special counsel for the Company, an
opinion, addressed to the Representatives and dated such Closing Date, in
the form set forth on Appendix B.
17
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel
satisfactory to the Representatives as to matters
18
which are governed by laws other than the laws of Singapore. Copies of
such certificates and other opinions shall be furnished to the
Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
and related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specified in the foregoing
opinion), on the basis of the foregoing, no facts have come to the
attention of such counsel which lead such counsel to believe that (i) the
Registration Statement at the time it became effective (except with
respect to the financial statements and notes and schedules thereto and
other financial data, as to which such counsel need express no belief)
contained any 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 Prospectus as amended or
supplemented (except with respect to the financial statements, notes and
schedules thereto and other financial data, as to which such counsel need
make no statement) on the date thereof contained any untrue statement of a
material fact or omitted 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.
(i) The Representatives shall have received on each Closing Date
from Xxxxxx Xxxxxxx Xxxxxxxxxxxx Xxxxx and de los Angeles Law Offices,
Philippines special counsel for the Company, an opinion, addressed to the
Representatives and dated such Closing Date, in the form set forth on
Appendix C.
19
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of responsible officers of the
Company and/or ATEC and public officials and on the opinions of other
counsel satisfactory to the Representatives as to matters which are
governed by laws other than the laws of the Philippines. Copies of such
certificates and other opinions shall be furnished to the Representatives
and counsel for the Underwriters.
(j) The Representatives shall have received on the Firm Shares
Closing Date from each of Ropes & Xxxx LLP, United States counsel for EDB
Investments Pte Ltd. ("EDB") and 3i Asia Pacific Technology LP and 3i
Group plc (the "3i Entities" and, collectively with EDB, the "Principal
Selling Shareholders"), Rajah & Xxxx, Singapore counsel to EDB, and
Xxxxxxxxx and May, United Kingdom counsel to the 3i Entities, an opinion,
addressed to the Representatives and dated such Firm Shares Closing Date
in the form set forth on Appendix D, Appendix E and Appendix F,
respectively:
20
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of the Principal Selling
Shareholders and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the
laws of (A) the State of New York and the Federal laws of the United
States, (B) Singapore or (C) the United Kingdom, respectively. Copies of
such certificates and other opinions shall be furnished to the
Representatives and counsel for the Underwriters.
(k) The Representatives shall have received on the Firm Shares
Closing Date from each of Xxxxxx & Xxxxxxx XXX, Xxxxxx Xxxxxx special
counsel for AML Trading Limited (such Selling Shareholder referred to in
this paragraph (k) as the "Additional Selling Shareholder"), and Xxxxxxx
Xxxx & Xxxxxxx, British Virgin Islands special counsel to the Additional
Shareholder, an opinion, addressed to the Representatives and dated such
Firm Shares Closing Date, in the form set forth in Appendix G and Appendix
H, respectively.
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of the Additional Selling
Shareholder and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the
laws of (A) the States of California and New York or the Federal laws of
the United States or (B) the laws of the British Virgin Islands,
respectively. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
(l) The Representatives shall have received on each Closing Date
from Xxxxxxxx & Xxxxxxxx LLP, counsel for the Representatives, an opinion,
addressed to the Representatives and dated such Closing Date, in the form
set forth in Appendix I.
21
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel
satisfactory to the Representatives as to matters which are governed by
laws other than the laws of the States of California and New York and the
Federal laws of the United States. Copies of such certificates and other
opinions shall be furnished to the Representatives.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
and related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specified in the foregoing
opinion), on the basis of the foregoing, no facts have come to the
attention of such counsel which lead such counsel to believe that (i) the
Registration Statement at the time it became effective (except with
respect to the financial statements and notes and schedules thereto and
other financial data, as to which such counsel need express no belief)
contained any 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
22
misleading, or that the Prospectus as amended or supplemented (except with
respect to the financial statements, notes and schedules thereto and other
financial data, as to which such counsel need make no statement) on the
date thereof contained any untrue statement of a material fact or omitted
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
(m) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives.
(n) The Representatives shall have received copies of the Lock-up
Agreements executed by each entity or person listed on Schedule III
hereto.
(o) The Shares shall have been approved for quotation on the
Nasdaq National Market, subject only to official notice of issuance.
(p) The Company and each Selling Shareholder shall have furnished
or caused to be furnished to the Representatives such further certificates
or documents as the Representatives shall have reasonably requested.
5. Covenants.
(a) The Company covenants and agrees as follows:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto, to become effective as
promptly as possible. The Company shall prepare the Prospectus in a
form approved by the Representatives and file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable,
such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act.
(ii) The Company shall promptly advise the Representatives in
writing (A) when any amendment to the Registration Statement shall
have become effective, (B) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any
additional information, (C) 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 the institution or threatening of any
proceeding for that purpose and (D) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company shall
not file any amendment of the Registration Statement or supplement
to the Prospectus unless the Company has furnished the
Representatives a copy for their review prior to filing and shall
not file any such proposed amendment or supplement to which the
Representatives reasonably
23
object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(iii) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Securities Act and the Rules,
any event occurs as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the Securities Act or
the Rules, the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (ii) of this
Section 5(a), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such
compliance.
(iv) The Company shall make generally available to its
security holders and to the Representatives as soon as practicable,
but not later than 45 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Company during
which the Effective Date occurs (or 90 days if such 12-month period
coincides with the Company's fiscal year), an earning statement
(which need not be audited) of the Company, covering such 12-month
period, which shall satisfy the provisions of Section 11(a) of the
Securities Act or Rule 158 of the Rules.
(v) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including all exhibits thereto and
amendments thereof) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and all amendments
thereof and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the Securities Act or the Rules, as
many copies of any preliminary prospectus and the Prospectus and any
amendments thereof and supplements thereto as the Representatives
may reasonably request. If applicable, the copies of the
Registration Statement and Prospectus and each amendment and
supplement thereto furnished to the Underwriters 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.
(vi) The Company shall cooperate with the Representatives and
their counsel in endeavoring to qualify the Shares for offer and
sale in connection with the offering under the laws of such
jurisdictions as the Representatives may designate and shall
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the Company
shall not be required in connection therewith, as a condition
thereof, to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction or subject itself
to taxation as doing business in any jurisdiction.
24
(vii) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act and the Rules or
the Exchange Act, will file all reports and other documents required
to be filed with the Commission pursuant to Section 13, 14 or 15 of
the Exchange Act within the time periods required by the Exchange
Act and the regulations promulgated thereunder.
(viii) Without the prior written consent of CIBC World Markets
Corp., for a period of 180 days after the date of this Agreement,
the Company shall not issue, sell or register with the Commission
(other than on Form S-8 or on any successor form), or otherwise
dispose of, directly or indirectly, any equity securities of the
Company (or any securities convertible into, exercisable for or
exchangeable for equity securities of the Company), except for the
issuance of the Shares pursuant to the Registration Statement and
the grant of stock options and the issuance of Ordinary Shares
pursuant to the Company's stock option plans as described in the
Registration Statement and the Prospectus. In the event that during
this period, (A) any shares are issued pursuant to the Company's
stock option plans that are exercisable during such 180-day period
or (B) any registration is effected on Form S-8 or on any successor
form relating to shares that are exercisable during such 180-day
period, the Company shall obtain the written agreement of such
grantee or purchaser or holder of such registered securities that,
for a period of 180 days after the date of this Agreement, such
person will not, without the prior written consent of CIBC World
Markets Corp., offer for sale, sell, distribute, grant any option
for the sale of, or otherwise dispose of, directly or indirectly, or
exercise any registration rights with respect to, any Ordinary
Shares (or any securities convertible into, exercisable for, or
exchangeable for any Ordinary Shares) owned by such person.
(ix) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws and
by the Nasdaq National Market (including any required registration
under the Exchange Act).
(x) Prior to the Closing Date, the Company will issue no
press release or other communications directly or indirectly and
hold no press conference with respect to the Company, the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of any of them, or the offering of the Shares
without the prior written consent of the Representatives unless in
the judgment of the Company and its counsel, and after notification
to the Representatives, such press release or communication is
required by law. Notwithstanding the preceding sentence, the
Company may, in consultation with legal counsel and the
Representatives, and with the prior consent of the Representatives,
issue a press release in customary form announcing the number and
price of the Shares to be sold.
(xi) The Company will apply the net proceeds from the
offering of the Shares in the manner set forth under "Use of
Proceeds" in the Prospectus.
25
(b) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses
incident to the public offering of the Shares and the performance of the
obligations of the Company under this Agreement including those relating
to: (i) the preparation, printing, filing and distribution of the
Registration Statement including all exhibits thereto, each preliminary
prospectus, the Prospectus, all amendments and supplements to the
Registration Statement and the Prospectus, and the printing, filing and
distribution of this Agreement; (ii) the preparation and delivery of
certificates for the Shares to the Underwriters; (iii) the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of the various jurisdictions referred to in Section
5(a)(vi), including the reasonable fees and disbursements of counsel for
the Underwriters in connection with such registration and qualification
and the preparation, printing, distribution and shipment of preliminary
and supplementary Blue Sky memoranda; (iv) the furnishing (including costs
of shipping and mailing) to the Representatives and to the Underwriters of
copies of each preliminary prospectus, the Prospectus and all amendments
or supplements to the Prospectus, and of the several documents required by
this Section to be so furnished, as may be reasonably requested for use in
connection with the offering and sale of the Shares by the Underwriters or
by dealers to whom Shares may be sold; (v) the filing fees of the NASD in
connection with its review of the terms of the public offering and
reasonable fees and disbursements of counsel for the Underwriters in
connection with such review; (vi) inclusion of the Shares for quotation on
the Nasdaq National Market; and (vii) all transfer taxes, if any, with
respect to the sale and delivery of the Shares by the Company to the
Underwriters. Subject to the provisions of Section 8, the Underwriters
agree to pay, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses
incident to the performance of the obligations of the Underwriters under
this Agreement not payable by the Company pursuant to the preceding
sentence, including, without limitation, the fees and disbursements of
counsel for the Underwriters.
(c) Each Selling Shareholder covenants and agrees as follows:
(i) Such Selling Shareholder will use its reasonable
efforts, for a period of 45 calendar days beginning on the date
hereof, not to take any action, and not to cause another person or
entity to take any action, that is reasonably likely to result in a
material change in the information in the Registration Statement or
the Prospectus relating to such Selling Shareholder, and that was
furnished in writing by such Selling Shareholder expressly for use
therein.
(ii) Such Selling Shareholder will advise the Representatives
promptly, and if requested by the Representatives, will confirm such
advice in writing, for a period of 45 calendar days beginning on the
date hereof, of any change in information in the Registration
Statement or the Prospectus relating to such Selling Shareholder
that was furnished in writing by such Selling Shareholder expressly
for use therein.
26
(d) Each Selling Shareholder agrees to pay all expenses incident
to the performance of its 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 Shares to the Underwriters, and (ii) the fees and
disbursements of its counsel and accountants.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which they,
or any of them, may become subject under the Securities Act, the Exchange
Act or other Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise
out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto, or in any Blue Sky application or other information or
other documents executed by the Company filed in any state or other
jurisdiction to qualify any or all of the Shares under the securities laws
thereof (any such application, document or information being hereinafter
referred to as a "Blue Sky Application") or arise out of or are based upon
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) in whole or in part upon any breach of the
representations and warranties set forth in Section 2 hereof, or (iii) in
whole or in part upon any failure of the Company to perform any of its
obligations hereunder or under law; provided, however, that such indemnity
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or supplement
thereto, or in any Blue Sky Application in reliance upon and in conformity
with information furnished in writing to the Company by the
Representatives on behalf of any Underwriter specifically for use therein.
The indemnity agreement contained in this Section 6(a) will be in addition
to any liability which the Company may otherwise have.
(b) Each of the Selling Shareholders, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted), to which they, or any of them, may become subject
under the Securities Act, the Exchange Act or other Federal or state law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based
27
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, the Registration Statement
or the Prospectus or any amendment thereof or supplement thereto, or in
any Blue Sky Application, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in any preliminary prospectus, the Registration Statement, the
Prospectus or any amendment thereof or supplement thereto or in any Blue
Sky Application in reliance upon and in conformity with written
information furnished to the Company by such Selling Shareholder expressly
for use therein; provided, however, that such indemnity shall not inure to
the benefit of any Underwriter (or any person controlling such
Underwriter) on account of any losses, claims, damages or liabilities
arising from the sale of Shares to any person by such Underwriter if such
untrue statement or omission or alleged untrue statement or omission was
made in such preliminary prospectus, the Registration Statement or the
Prospectus, or such amendment or supplement thereto, or in any Blue Sky
Application in reliance upon and in conformity with information furnished
in writing to the Company by the Representatives on behalf of any
Underwriter specifically for use therein. Notwithstanding the foregoing,
the liability of a Selling Shareholder pursuant to the provisions of this
Section 6(b) shall be limited to an amount equal to the aggregate net
proceeds received by such Selling Shareholder from the sale of the Shares
sold by such Selling Shareholder hereunder. The indemnity agreement in
this Section 6(b) will be in addition to any liability which the Company
may otherwise have.
(c) Each Underwriter agrees to indemnify and hold harmless the
Company, each of the Selling Shareholders and each person, if any, who
controls the Company or any Selling Shareholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, each
director of the Company, and each officer of the Company who signs the
Registration Statement, against any losses, claims, damages or liabilities
to which such party may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any preliminary prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representative expressly for use
therein; provided, however, that the obligation of each Underwriter to
indemnify the Company or any Selling Shareholder (including any
controlling person, director or officer thereof) shall be limited to the
net proceeds received by the Company from such Underwriter.
(d) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or
28
proceeding against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section, notify each
such indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served. No indemnification
provided for in Section 6(a), 6(b) or 6(c) shall be available to any party
who shall fail to give notice as provided in this Section 6(d) if the
party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give
such notice but the omission so to notify such indemnifying party of any
such action, suit or proceeding shall not relieve it from any liability
that it may have to any indemnified party for contribution or otherwise
than under this Section. In case any such action, suit or proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and the
approval by the indemnified party of such counsel, the indemnifying party
shall not be liable to such indemnified party for any legal or other
expenses, except as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party in
connection with the defense thereof. The indemnified party shall have the
right to employ its counsel in any such action, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (ii) the indemnified
party shall have been advised by counsel that there may be one or more
legal defenses available to it which are different from or in addition to
those available to the indemnifying party (in which case the indemnifying
parties shall not have the right to direct the defense of such action on
behalf of the indemnified party) or (iii) the indemnifying parties shall
not have employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be liable for any
settlement of any action, suit, and proceeding or claim effected without
its written consent, which consent shall not be unreasonably withheld or
delayed.
7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 6(a), 6(b) or 6(c) is due in accordance with its terms but for any
reason is unavailable to or insufficient to hold harmless an indemnified party
in respect to any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate losses,
liabilities, claims, damages and expenses (including any investigation, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claims asserted, but
after deducting any contribution received by any person entitled hereunder to
contribution from any person who may be liable for contribution) incurred by
such indemnified party, as incurred 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 Underwriters on the other hand from the
offering of the Shares pursuant to this Agreement or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Company and the Selling Shareholders
29
on the one hand and the Underwriters on the other hand in connection with the
statements or omissions, resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations. The
Company, the Selling Shareholders and the Underwriters 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 Underwriters 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. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above 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. Notwithstanding the provisions of this Section 7,
(i) no Underwriter (except as may be provided in the Agreement Among
Underwriters) shall be required to contribute any amount in excess of the amount
by which the total price at which the shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of damages which
such underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission; and (ii) no Selling
Shareholder shall be required to contribute in any circumstance in which it
would not have been required to provide indemnification and, in any event, not
in an amount in excess of the aggregate net proceeds of the sale of Shares
received by such Selling Shareholder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
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 Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or any/the Selling Shareholders within the meaning of the Section 15 of
the Securities Act or Section 20 of the Exchange Act, shall have the same rights
to contribution as the Company or any Selling Shareholder, as the case may be.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section 7. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriter's obligations to contribute
pursuant to this Section 7 are several in proportion to their respective
underwriting commitments and not joint. The provisions of this Section 7 shall
not affect any agreement among the Company and the Selling Shareholders with
respect to contribution.
8. Termination.
(a) This Agreement may be terminated with respect to the Shares to
be purchased on a Closing Date by the Representatives by notifying the
Company and the
30
Selling Shareholders at any time at or before a Closing Date in the
absolute discretion of the Representatives if: (i) there has occurred any
material adverse change in the securities markets in the United States or
any event, act or occurrence that has materially disrupted, or in the
opinion of the Representatives, will in the future materially disrupt, the
securities markets in the United States or there shall be such a material
adverse change in general financial, political or economic conditions or
the effect of international conditions on the financial markets in the
United States is such as to make it, in the judgment of the
Representatives, inadvisable or impracticable to market the Shares or
enforce contracts for the sale of the Shares; (ii) there has occurred any
outbreak or material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Representatives, inadvisable or
impracticable to market the Shares or enforce contracts for the sale of
the Shares; (iii) trading in the Shares or any securities of the Company
has been suspended or materially limited by the Commission or trading
generally on the New York Stock Exchange, Inc. or the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum
ranges for prices for securities shall have been fixed, or maximum ranges
for prices for securities 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 or regulatory
authority; (iv) a banking moratorium has been declared by the States of
California, New York or Texas, or by Federal authority; or (v) in the
judgment of the Representatives, there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
assets, properties, condition, financial or otherwise, or in the results
of operations, business affairs or business prospects of the Company and
its Subsidiaries considered as a whole, whether or not arising in the
ordinary course of business.
(b) If this Agreement is terminated pursuant to any of its
provisions, neither the Company nor any Selling Shareholder shall be under
any liability to any Underwriter, and no Underwriter shall be under any
liability to the Company or any Selling Shareholder, except that (y) if
this Agreement is terminated by the Representatives or the Underwriters
because of any failure, refusal or inability on the part of the Company or
the Selling Shareholders to comply with the terms or to fulfill any of the
conditions of this Agreement, the Company will reimburse the Underwriters
for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the
proposed purchase and sale of the Shares or in contemplation of performing
their obligations hereunder and (z) no Underwriter who shall have failed
or refused to purchase the Shares agreed to be purchased by it under this
Agreement, without some reason sufficient hereunder to justify
cancellation or termination of its obligations under this Agreement, shall
be relieved of liability to the Company, the Selling Shareholders or to
the other Underwriters for damages occasioned by its failure or refusal.
9. Substitution of Underwriters. If any Underwriter shall default in
its obligation to purchase on any Closing Date the Shares agreed to be purchased
hereunder on such Closing Date, the Representatives shall have the right, within
36 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase such
31
Shares on the terms contained herein. If, however, the Representatives shall not
have completed such arrangements within such 36-hour period, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Underwriters to
purchase such Shares on such terms. If, after giving effect to any arrangements
for the purchase of the Shares of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided above, the aggregate number of
Shares which remains unpurchased on such Closing Date does not exceed
one-eleventh of the aggregate number of all the Shares that all the Underwriters
are obligated to purchase on such date, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such date and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Shares which such Underwriter agreed to purchase hereunder) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default. In any such case, either the
Representatives or the Company and the Selling Shareholders shall have the right
to postpone the applicable Closing Date for a period of not more than seven days
in order to effect any necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or Prospectus
or any other documents), and the Company agrees to file promptly any amendments
to the Registration Statement or the Prospectus which in the opinion of the
Company and the Underwriters and their counsel may thereby be made necessary.
If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the Representatives and
the Company as provided above, the aggregate number of such Shares which remains
unpurchased exceeds 10% of the aggregate number of all the Shares to be
purchased at such date, then this Agreement, or, with respect to a Closing Date
which occurs after the First Closing Date, the obligations of the Underwriters
to purchase and of the Company to sell the Option Shares to be purchased and
sold on such date, shall terminate, without liability on the part of any
non-defaulting Underwriter to the Company or the Selling Shareholders, and
without liability on the part of the Company or the Selling Shareholders, except
as provided in Sections 5(b), 6, 7 and 8. The provisions of this Section 9 shall
not in any way affect the liability of any defaulting Underwriter to the Company
or the nondefaulting Underwriters arising out of such default. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section 9 with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
10. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company, the Selling
Shareholders and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or the Company or the
Selling Shareholders or any of their respective officers, directors or
controlling persons referred to in Sections 6 and 7 hereof, and shall survive
delivery of and payment for the Shares. In addition, the provisions of Sections
5(b), 6, 7 and 8 shall survive the termination or cancellation of this
Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Shareholders and their respective
successors and assigns, and, to the
32
extent expressed herein, for the benefit of persons controlling any of the
Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing: (a) if to the Representatives, c/o CIBC World Markets Corp., 000 0xx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxx, with a copy
to Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxx; and (b) if to the Company, to its agent for service as
such agent's address appears on the cover page of the Registration Statement,
with a copy to Xxxxxx & Xxxxxxx LLP, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxxx; and
(c) if to the Principal Selling Shareholders (as such term is defined in section
4(j)) to: (i) EDB Investments Pte Ltd., 000, Xxxxx Xxxxxx Xxxx, #00-00, Xxxxxxx
Xxxx Xxxxx, Xxxxxxxxx 000000, Attention: _____________; (ii) 3i Asia Pacific
Technology LP, 00, Xxxxxxxx Xxxx, Xxxxxx XX00XX, Xxxxxxx, Attention:
_____________; and (iii) 3i Group plc, 00, Xxxxxxxx Xxxx, Xxxxxx XX00XX,
Xxxxxxx, Attention: _____________, each with a copy to Ropes & Xxxx LLP, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx;
and (d) if to the Additional Selling Shareholder (as such term is defined in
section 4(k)) to: (i) XXX Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxxx, Xxxxxx Xxxx Xxxxxxxx,
P.O. Box 438, Road Town, Tortola, British Virgin Islands, Attention:
____________, with a copy to Xxxxxx & Xxxxxxx LLP, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx
Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxxxx.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
33
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
INFINITI SOLUTIONS LTD
By _________________________________
Title:
34
EDB INVESTMENT PTE LTD.
By _________________________________
Title:
35
3i ASIA PACIFIC TECHNOLOGY LP
By _________________________________
Title:
36
3i GROUP PLC
By _________________________________
Title:
37
AML Trading Limited
By _________________________________
Title:
38
Confirmed:
CIBC WORLD MARKETS CORP.
____________________________________
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I annexed
hereto.
By CIBC WORLD MARKETS CORP.
By _________________________________
Title:
39
SCHEDULE I
Number of
Firm Shares
to
be
Name Purchased
---- -----------
CIBC World Markets Corp.
RBC Capital Markets Corporation
XX Xxxxxxxxx+Co, LLC
-----------
Total
Sch I - 1
SCHEDULE II
Number of
Firm Shares
to
Name be Sold
---- -----------
Infiniti Solutions Ltd.
Selling Shareholders:
EDB Investments Pte Ltd., a Singapore corporation
3i Asia Pacific Technology LP, a United Kingdom limited partnership
3i Group plc, a United Kingdom corporation
AML Trading Limited, a British Virgin Islands corporation
-----------
Total
Sch II - 1
