AVAGO TECHNOLOGIES LIMITED Ordinary Shares UNDERWRITING AGREEMENT
Exhibit 1.1
25,000,000
AVAGO TECHNOLOGIES LIMITED
Ordinary Shares
January 18, 2011
Deutsche Bank Securities Inc.
Barclays Capital Inc.
As Representatives of the several
Underwriters named in Schedule 1 attached hereto
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Barclays Capital Inc.
As Representatives of the several
Underwriters named in Schedule 1 attached hereto
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain shareholders of Avago Technologies Limited, a company organized under the laws of the
Republic of Singapore (the “Company”), named in Schedule 2 attached hereto (the “Selling
Shareholders”), propose to sell an aggregate of 25,000,000 (the “Firm Shares”) of the Company’s
Ordinary Shares, no par value per share (the “Ordinary Shares”). In addition, the Selling
Shareholders propose to grant to the underwriters (the “Underwriters”) named in Schedule 1
attached to this agreement (this “Agreement”) an option to purchase up to an aggregate of 3,750,000
additional shares of the Ordinary Shares on the terms set forth in Section 3 (the “Option Shares”).
The Firm Shares and the Option Shares, if purchased, are hereinafter collectively called the
“Shares.” This is to confirm the agreement concerning the purchase of the Shares from the Selling
Shareholders by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The Company represents,
warrants and agrees that:
(a) An “automatic shelf registration statement” as defined in Rule 405 under
the Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No.
333-168621) in respect of the Shares, including a form of prospectus (the “Base
Prospectus”), has been prepared and filed by the Company not earlier than three
years prior to the date hereof, in conformity with the requirements of the
Securities Act and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder. The Company and
the transactions contemplated by this Agreement meet the requirements and comply
with the conditions for the use of Form S-3. Copies of such registration statement,
including any amendments thereto, the Base
Prospectus, as supplemented by the most recent preliminary prospectus
(including any preliminary prospectus supplement) relating to the Shares filed with
the Commission pursuant to Rule 424(b) under the Securities Act, and including the
documents incorporated in the Base Prospectus by reference (the “Preliminary
Prospectus”), and the exhibits, financial statements and schedules to such
registration statement, in each case as finally amended and revised, have heretofore
been made available by the Company to you as the Representatives (the
“Representatives”) of the Underwriters. Such registration statement, together with
any registration statement filed by the Company pursuant to Rules 413(b) and 462(f)
under the Securities Act, is herein referred to as the “Registration Statement,”
which shall be deemed to include all information omitted therefrom in reliance upon
Rules 430A, 430B or 430C under the Securities Act and contained in the Prospectus
referred to below, has become effective under the Securities Act and no
post-effective amendment to the Registration Statement has been filed as of the date
of this Agreement. “Prospectus” means the form of prospectus relating to the Shares
first filed with the Commission pursuant to and within the time limits described in
Rule 424(b) under the Securities Act and in accordance with Section 6(a)(i) hereof.
Any reference herein to the Registration Statement, the Preliminary Prospectus or to
the Prospectus or to any amendment or supplement to any of the foregoing documents
shall be deemed to refer to and include any documents incorporated by reference
therein, and, in the case of any reference herein to the Prospectus, also shall be
deemed to include any documents incorporated by reference therein, and any
supplements or amendments thereto, filed with the Commission after the date of
filing of the Prospectus under Rule 424(b) under the Securities Act, and prior to
the termination of the offering of the Shares by the Underwriters.
As used in this Agreement:
(i) “Applicable Time” means 6:30 a.m. (New York time) on the date of this
Agreement or such other time as agreed to by the Company and the Representatives.
(ii) “Effective Date” means any date and time as of which any part of such
“automatic shelf registration statement” relating to the Ordinary Shares became, or
is deemed to have become, effective under the Securities Act.
(iii) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Company or used or referred to by the Company in connection with the offering of the
Shares.
(iv) “Pricing Disclosure Package” means, as of the Applicable Time, and as of
the Closing Date or the Option Closing Date, as the case may be, any Issuer Free
Writing Prospectus(es) issued at or prior to the Applicable Time (other than a road
show that is an Issuer Free Writing Prospectus but is not required to be filed under
Rule 433 of the Rules and Regulations) and the Statutory Prospectus.
(v) “Statutory Prospectus” means the Base Prospectus, as amended and
supplemented immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement deemed to be a part
thereof.
(b) The Company has been since the time of initial filing of the Registration
Statement, continues to be, and will be on the applicable Delivery Date, a
“well-known seasoned issuer” (as defined in Rule 405) eligible to use Form S-3 for
the offering of the Ordinary Shares on any such time or date.
(c) The Registration Statement conformed and will conform in all material
respects on the Effective Date and on the applicable Delivery Date, and any
amendment to the Registration Statement filed after the date hereof will conform in
all material respects when filed, to the requirements of the Securities Act and the
Rules and Regulations. The Preliminary Prospectus conformed, and the Prospectus
will conform, in all material respects when filed with the Commission pursuant to
Rule 424(b) and on the applicable Delivery Date to the requirements of the
Securities Act and the Rules and Regulations. The documents incorporated by
reference in the Registration Statement, the Pricing Disclosure Package or the
Prospectus conformed, when filed with the Commission, in all material respects to
the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) or the Securities Act, as applicable, and the rules and regulations of the
Commission thereunder.
(d) The Registration Statement did not, as of the Effective Date, contain an
untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided
that no representation or warranty is made as to information contained in or omitted
from the Registration Statement in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information is specified
in Section 10(f).
(e) The Prospectus will not, as of its date and on the applicable Delivery
Date, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided
that no representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in
Section 10(f).
(f) The documents incorporated by reference in the Registration Statement, the
Pricing Disclosure Package or the Prospectus did not, when filed
with the Commission, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made,
not misleading.
(g) The Pricing Disclosure Package did not, as of the Applicable Time, contain
an untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Pricing Disclosure Package in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters specifically for inclusion therein, which information is specified in
Section 10(f).
(h) Each Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433), if any, when considered
together with the Pricing Disclosure Package as of the Applicable Time, did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(i) Each Issuer Free Writing Prospectus complied or will comply in all material
respects to the requirements of the Securities Act and the Rules and Regulations on
the date of first use, and the Company has complied with all prospectus delivery and
any filing requirements applicable to such Issuer Free Writing Prospectus pursuant
to the Rules and Regulations. The Company has not made any offer relating to the
Shares that would constitute an Issuer Free Writing Prospectus without the prior
written consent of the Representatives. The Company has retained in accordance with
the Rules and Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and Regulations.
(j) Each of the Company and its subsidiaries (as defined in Section 19) has
been duly organized, is validly existing and in good standing as a corporation or
other business entity under the laws of its jurisdiction of organization and is duly
qualified to do business and in good standing as a foreign corporation or other
business entity in each jurisdiction in which its ownership or lease of property or
the conduct of its businesses requires such qualification, except where the failure
to be so qualified or in good standing would not, in the aggregate, reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), results of operations, shareholders’ equity, properties, business or
prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”); each of the Company and its subsidiaries has all corporate or similar
power and authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged. The Company does not own or control, directly or
indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to the Company’s
Annual Report on Form 10-K for the most recent fiscal year and East Texas Integrated
Circuits, Inc.
(k) The Company has issued share capital as set forth in each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus, and all
of the issued share capital of the Company have been duly authorized and validly
issued, are fully paid and non-assessable, conform in all material respects to the
description thereof contained in the Registration Statement, the Pricing Disclosure
Package and the Prospectus and were issued in compliance with federal and state
securities laws and not in violation of any preemptive right, resale right, right of
first refusal or similar right. All of the Company’s options, warrants and other
rights to purchase or exchange any securities for shares of the Company’s share
capital have been duly authorized and validly issued, conform in all material
respects to the description thereof contained in the Registration Statement, the
Pricing Disclosure Package and the Prospectus and were issued in compliance with
federal and state securities laws. All of the issued share capital of each
subsidiary of the Company have been duly authorized and validly issued, are fully
paid and non-assessable and, except for directors’ qualifying shares or as otherwise
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, except for such liens, encumbrances,
equities or claims as would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(l) The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement. This Agreement has been
duly and validly authorized, executed and delivered by the Company.
(m) The execution, delivery and performance of this Agreement by the Company
and the consummation of the transactions contemplated hereby will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, impose
any lien, charge or encumbrance upon any property or assets of the Company and its
subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, license or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject; (ii) result in any violation of the provisions of the
Memorandum and Articles of Association (or, in the case of each subsidiary, similar
organizational documents) of the Company or any of its subsidiaries; or (iii) result
in any violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets, except with respect to clauses
(i) and (iii) where such conflicts, breaches or violations that, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect or that, in the
aggregate, would not reasonably be
expected to have a material adverse effect on the performance of this Agreement
by the Company or the consummation by the Company of the transactions contemplated
hereby.
(n) No consent, approval, authorization or order of, or filing or registration
with, or qualification from, any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties
or assets is required for the execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated hereby, except
for the registration of the Shares under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required under
the Exchange Act, and applicable state or foreign securities laws in connection with
the purchase and sale of the Shares by the Underwriters.
(o) Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right (other than rights
which have been waived in writing or otherwise satisfied) to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(p) The Company has not sold or issued any securities that would be integrated
with the offering of the Shares contemplated by this Agreement pursuant to the
Securities Act, the Rules and Regulations or the interpretations thereof by the
Commission.
(q) Neither the Company nor any of its subsidiaries has sustained, since the
date of the latest audited financial statements included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, and since such date, there has not
been any change in the share capital or long-term debt of the Company or any of its
subsidiaries or any adverse change, or any development involving a prospective
adverse change, in or affecting the condition (financial or otherwise), results of
operations, shareholders’ equity, properties, management, business or prospects of
the Company and its subsidiaries taken as a whole, in each case except as described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus or
as would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(r) Since the date as of which information is given in the Registration
Statement, the Pricing Disclosure Package and the Prospectus and except as described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
the Company has not (i) incurred any liability or obligation, direct or contingent,
other than liabilities and obligations that were incurred in the ordinary course of
business, (ii) entered into any material transaction not in the ordinary course of
business or (iii) declared or paid any dividend on its share capital.
(s) The historical financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus comply as to form in
all material respects with the requirements of Regulation S-X under the Securities
Act and present fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at the dates
and for the periods indicated and have been prepared in conformity with accounting
principles generally accepted in the United States applied on a consistent basis
throughout the periods involved.
(t) PricewaterhouseCoopers LLP, who have certified certain financial statements
of the Company and its consolidated subsidiaries, whose report appears in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and who
have delivered the initial letter referred to in Section 9(g) hereof, are
independent public accountants of the Company, as required by the Securities Act and
the Rules and Regulations.
(u) The Company and each of its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances and
defects, and all assets held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases, except for such
exceptions as are described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus or as would not, in the aggregate, be reasonably expected
to have a Material Adverse Effect.
(v) The Company and each of its subsidiaries carry, or are covered by,
insurance from insurers of recognized financial responsibility in such amounts and
covering such risks as the Company reasonably believes is adequate for the conduct
of their respective businesses and the value of their respective properties and as
is customary for companies engaged in similar businesses in similar industries.
(w) The statistical and market-related data included under the captions
“Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and “Business” included or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus are based on or derived from estimates and sources that
the Company believes to be reliable and accurate in all material respects.
(x) Neither the Company nor any subsidiary is, and as of the applicable
Delivery Date, none of them will be, (i) an “investment company” within the meaning
of such term under the Investment Company Act of 1940, as amended (the “Investment
Company Act”), and the rules and regulations of the Commission thereunder or (ii) a
“business development company” (as defined in Section 2(a)(48) of the Investment
Company Act).
(y) Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject that would, in
the aggregate, reasonably be expected to have a Material Adverse Effect or would, in
the aggregate, reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of the transactions contemplated
hereby; and to the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others.
(z) There are no legal or governmental proceedings or contracts or other
documents of a character required to be described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus or, in the case of documents, to be
filed as exhibits to the Registration Statement, that are not described, filed or
incorporated by reference as required. Statements made in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the captions
“Description of Share Capital,” “Comparison of Shareholder Rights” and “Tax
Considerations” insofar as they purport to constitute summaries of the terms of
statutes, rules or regulations, legal or governmental proceedings or contracts and
other documents, constitute accurate and fair summaries in all material respects of
the terms of such statutes, rules and regulations, legal and governmental
proceedings and contracts and other documents.
(aa) Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, no relationship, direct or indirect, exists between or
among the Company, on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company, on the other hand, that is required to be
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus which is not so described.
(bb) No labor disturbance by the employees of the Company or its subsidiaries
exists or, to the knowledge of the Company, is imminent that would reasonably be
expected to have a Material Adverse Effect.
(cc) Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the Company and each of its subsidiaries have filed all
material federal, state, local and foreign income and franchise tax returns required
to be filed through the date hereof, subject to permitted extensions, and have paid
all material taxes due thereon. No material tax
deficiency has been determined adversely to the Company or any of its
subsidiaries. The Company does not have any knowledge of any tax deficiencies that
would, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dd) There are no transfer taxes or other similar fees or charges under U.S.
Federal law or the laws of any state, or any political subdivision thereof, required
to be paid in connection with the execution and delivery of this Agreement.
(ee) No stamp, issue, registration, documentary, transfer or other similar
taxes and duties, including interest and penalties, are payable in the Republic of
Singapore on or in connection with the execution and delivery of this Agreement,
other than as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(ff) Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, no approvals of any governmental or regulatory body or
agency are required in the Republic of Singapore in order for the Company to pay
dividends or other distributions declared by the Company to the holders of Ordinary
Shares. Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, under the laws and regulations of the Republic of
Singapore, any amounts payable with respect to the Ordinary Shares upon liquidation
of the Company or upon redemption thereof and dividends and other distributions
declared and payable on the Ordinary Shares may be paid by the Company to the
holders of Ordinary Shares in Singapore dollars that may be converted into foreign
currency and freely transferred out of the Republic of Singapore, and no such
payments made to holders thereof or therein who are non-residents of the Republic of
Singapore will be subject to income, withholding or other taxes under laws and
regulations of the Republic of Singapore or taxing authority thereof or therein and
will otherwise be free and clear of any other tax, duty, withholding or deduction in
the Republic of Singapore or taxing authority thereof or therein and without the
necessity of obtaining any governmental authorization in the Republic of Singapore
or taxing authority thereof or therein.
(gg) Subject to the qualifications set forth in “Tax Considerations—U.S.
Federal Income Taxation—Passive Foreign Investment Company” in the Pricing
Disclosure Package and the Prospectus, the Company does not expect to be a “passive
foreign investment company” (as defined in Section 1297 of the Internal Revenue Code
of 1986, as amended) for its 2010 taxable year or any future taxable year.
(hh) Neither the Company nor any of its subsidiaries, nor, to the knowledge of
the Company, any director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries, has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or employee
from corporate funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, unlawful rebate,
payoff, influence payment, kickback or other unlawful payment.
(ii) Neither the Company nor any of its subsidiaries (i) is in violation of its
Memorandum and Articles of Association (or similar organizational documents), (ii)
is in default, and no event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, license or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject or (iii) is
in violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it or its property or assets or
has failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property or
to the conduct of its business, except in the case of clauses (ii) and (iii), to the
extent any such conflict, breach, violation or default would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(jj) The Company and each of its subsidiaries (i) make and keep accurate books
and records and (ii) maintain and has maintained effective internal control over
financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of
internal accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management’s general or specific
authorization, (B) transactions are recorded as necessary to permit preparation of
the Company’s financial statements in conformity with accounting principles
generally accepted in the United States and to maintain accountability for its
assets, (C) access to the Company’s assets is permitted only in accordance with
management’s general or specific authorization and (D) the recorded accountability
for the Company’s assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(kk) (i) The Company and each of its subsidiaries have established and maintain
disclosure controls and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures are designed to ensure
that the information required to be disclosed by the Company and its subsidiaries in
the reports they will file or submit under the Exchange Act is accumulated and
communicated to management of the Company and its subsidiaries, including their
respective principal executive officers and principal financial officers, as
appropriate, to allow timely decisions regarding required disclosure to be made and
(iii) such disclosure controls and procedures are effective in all material respects
to perform the functions for which they were established.
(ll) Since the date of the most recent balance sheet of the Company and its
consolidated subsidiaries reviewed or audited by PricewaterhouseCoopers LLP and the
audit committee of the board of directors of the Company, (i) the Company has not
been advised of (A) any significant deficiencies in the design or operation of
internal controls that could adversely affect the ability of the Company and each of
its subsidiaries to record, process, summarize and report financial data, or any
material weaknesses in internal controls and (B) any fraud, whether or not material,
that involves management or other employees who have a significant role in the
internal controls of the Company and each of its subsidiaries, and (ii) since that
date, there have been no significant changes in internal controls or in other
factors that would materially adversely affect internal controls, including any
corrective actions with regard to significant deficiencies and material weaknesses.
(mm) The Company and each of its subsidiaries have such permits, licenses,
patents, franchises, certificates of need and other approvals or authorizations of
governmental or regulatory authorities (“Permits”) as are necessary under applicable
law to own their properties and conduct their businesses in the manner described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus,
except for any of the foregoing that would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect; each of the Company and its subsidiaries
has fulfilled and performed all of its obligations with respect to the 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 impairment of the rights
of the holder or any such Permits, except for any of the foregoing that would not
reasonably be expected to have a Material Adverse Effect.
(nn) The Company and each of its subsidiaries own or possess adequate rights to
use all material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights, licenses,
know-how, software, systems and technology (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses and have no
reason to believe that the conduct of their respective businesses will conflict
with, and have not received any notice of any claim of conflict with, any such
rights of others that would reasonably be expected to have a Material Adverse
Effect, and the Company is not aware of any material pending or threatened claim to
the contrary or any material pending or threatened challenge by any other person to
the rights of the Company and its subsidiaries with respect to the foregoing.
(oo) The Company and each of its subsidiaries (i) are in compliance with all
laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other
legal requirements of any governmental authority, including without limitation any
international, national, state, provincial, regional, or local authority, relating
to the protection of human health or safety, the environment, or natural
resources, or to hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”) applicable to such entity, which compliance
includes, without limitation, obtaining, maintaining and complying with all permits
and authorizations and approvals required by Environmental Laws to conduct their
respective businesses, and (ii) have not received notice of any actual or alleged
violation of Environmental Laws, or of any potential liability for or other
obligation concerning the presence, disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where the failure to comply
with such Environmental Laws would not, in the aggregate, reasonably be expected to
have a Material Adverse Effect. Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, (A) there are no proceedings that
are pending, or known to be contemplated, against the Company or any of its
subsidiaries under Environmental Laws in which a governmental authority is also a
party, other than such proceedings regarding which it is reasonably believed no
monetary sanctions of $100,000 or more will be imposed and (B) the Company and its
subsidiaries are not aware of any issues regarding compliance with Environmental
Laws, or liabilities or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or contaminants, that would
reasonably be expected to have a Material Adverse Effect.
(pp) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from repaying to the Company any
loans or advances to such subsidiary from the Company or from transferring any of
such subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(qq) 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 knowledge of the Company, threatened, except, in each case, as would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(rr) 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”).
(ss) The Company has not distributed and, prior to the later to occur of any
Delivery Date and completion of the distribution of the Shares, will not distribute
any offering material in connection with the offering and sale of the Shares other
than the Preliminary Prospectus, the Prospectus, and any Issuer Free Writing
Prospectus to which the Representatives have consented in accordance with Section
1(i) or 6(a)(vi).
(tt) The Company has not taken and will not take, directly or indirectly, any
action designed to or that has constituted or that could reasonably be expected to
cause or result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
(uu) The Shares have been approved for listing on The NASDAQ Global Select
Market.
(vv) To the knowledge of the executive officers of the Company without
independent investigation, there are no affiliations between a member, a person
associated with a member, or a person affiliated with a member of the Financial
Industry Regulatory Authority, Inc. (“FINRA”), and any beneficial owner of the
Company’s unregistered equity securities that were acquired from the Company during
the 180-day period immediately preceding the date of this Agreement, except as set
forth in the Registration Statement, the Pricing Disclosure Package and the
Prospectus or otherwise disclosed in writing to the Underwriters.
(ww) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply in any
material respect with the provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended,
and the rules and regulations promulgated in connection therewith, to the extent
such provisions, rules and regulations are applicable to the Company.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Shares shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Representations, Warranties and Agreements of the Selling Shareholders. Each Selling
Shareholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither such Selling Shareholder nor any person acting on behalf of such Selling
Shareholder (other than, if applicable, the Company and the Underwriters) has used or
referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Shareholder has, or immediately prior to any Delivery Date on which
such Selling Shareholder is selling Shares, such Selling Shareholder will have, good and
valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the
New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such
Selling Shareholder hereunder on such Delivery Date, free and clear of all
liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or
claims arising under the Custody Agreement or otherwise in favor of the Underwriters.
(c) The Shares to be sold by such Selling Shareholder hereunder, which are represented
by the certificates held in custody for such Selling Shareholder, are subject to the
interests of the Underwriters and the other Selling Shareholders thereunder, the arrangements
made by such Selling Shareholder for such custody are to that extent irrevocable, and the
obligations of such Selling Shareholder hereunder shall not be terminated by any act of such
Selling Shareholder, by operation of law, death or incapacity of such individual Selling
Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee
or the termination of such trust, or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by each Selling
Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the
Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The
Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such
other nominee, and the crediting of such Shares on the books of DTC to securities account(s)
(within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC
(assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within
the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected
purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section
8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of
such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust,
equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section
8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to
such security entitlement. For purposes of this representation, such Selling Shareholder may
assume that when such payment, delivery and crediting occur, (A) such Shares will have been
registered in the name of Cede or another nominee designated by DTC, in each case on the
Company’s share registry in accordance with its Memorandum and Articles of Association and
applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of
Section 8-102 of the UCC, (C) appropriate entries to the account(s) of the several
Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent
DTC, or any other securities intermediary which acts as “clearing corporation” with respect
to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC
in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing
corporation may affect the rights of DTC or such securities intermediaries and the ownership
interest of the Underwriters), (E) claims of creditors of DTC or any other securities
intermediary or clearing corporation may be given priority to the extent set forth in Section
8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities
intermediary does not have sufficient Shares to satisfy claims of all of its entitlement
holders with respect thereto then all holders will share pro rata in the Shares then held by
DTC or such securities intermediary.
(e) Such Selling Shareholder has placed in custody under a custody agreement (the
“Custody Agreement” and, together with all other similar agreements executed by
the other Selling Shareholders, the “Custody Agreements”) with Computershare Inc., as
custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable
form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Program or the Shares Exchange
Medallion Program) representing the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of
attorney (the “Power of Attorney” and, together with all other similar agreements executed by
the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Xxxxxxxxx
and Xx. Xxxxxxxx X. XxXxxx, and each of them, as attorneys-in-fact, with full power of
substitution, and with full authority (exercisable by any one or more of them) to execute and
deliver this Agreement on behalf of such Selling Shareholders and to take such other action
as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling
Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and
duties, including interest and penalties, are payable in the Republic of Singapore on or in
connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution
and delivery of this Agreement, other than as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(h) Such Selling Shareholder has full right, power and authority, corporate or
otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on
behalf of such Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly
authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute
valid and legally binding obligations of such Selling Shareholder enforceable against such
Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith
and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and
the Power of Attorney by such Selling Shareholder and the consummation by such Selling
Shareholder of the transactions contemplated hereby and thereby do not and will not (i)
conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license
or other agreement or instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder is bound or to which any of the property or assets of such Selling
Shareholder is subject, (ii) result in any violation of the provisions of the charter or
by-laws (or similar organizational documents) of such Selling Shareholder or
(iii) result in any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over such Selling Shareholder or the
property or assets of such Selling Shareholder.
(l) No consent, approval, authorization or order of, or filing or registration with, any
court or governmental agency or body having jurisdiction over such Selling Shareholder or the
property or assets of such Selling Shareholder is required for the execution, delivery and
performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling
Shareholder and the consummation by such Selling Shareholder of the transactions contemplated
hereby and thereby, except for the registration of the Shares under the Securities Act and
such consents, approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities laws in connection with the
purchase and sale of the Shares by the Underwriters.
(m) (i) The Registration Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; (ii) the Prospectus will not, as
of its date and on the applicable Delivery Date, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain
an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; (iv) the documents incorporated by reference in the
Registration Statement, the Pricing Disclosure Package or the Prospectus did not, and any
further documents filed and incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and (v) each Issuer Free
Writing Prospectus (including without limitation, any road show that is a free writing
prospectus under Rule 433), if any, when considered together with the Pricing Disclosure
Package as of the Applicable Time, did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the representations and warranties in the foregoing clauses (i)
through (v) are made only as to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of such Selling
Shareholder (x) specifically for use in the preparation of the Registration Statement, (y)
specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or
the Prospectus or (z) specifically for inclusion in such other documents.
(n) Such Selling Shareholder has not taken and will not take, directly or indirectly,
any action that is designed to or that has constituted or that could reasonably be expected
to cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
Any certificate signed by any officer of any Selling Shareholder and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the Shares shall
be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby,
to each Underwriter.
3. Purchase of the Shares by the Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this Agreement, each Selling
Shareholder agrees to sell the number of shares of the Firm Shares set forth opposite its name in
Schedule 2 hereto, severally and not jointly, to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares of the Firm Shares
set forth opposite that Underwriter’s name in Schedule 1 hereto. Each Underwriter shall be
obligated to purchase from each Selling Shareholder that number of shares of the Firm Shares that
represents the same proportion of the number of shares of the Firm Shares to be sold by each
Selling Shareholder as the number of shares of the Firm Shares set forth opposite the name of such
Underwriter in Schedule 1 represents of the total number of shares of the Firm Shares to be
purchased by all of the Underwriters pursuant to this Agreement. The respective purchase
obligations of the Underwriters with respect to the Firm Shares shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, each Selling Shareholder grants to the Underwriters an option to purchase up to
the number of shares of Option Shares set forth opposite such Selling Shareholder’s name in
Schedule 2 hereto, severally and not jointly. Such option is exercisable in the event that
the Underwriters sell more shares of Ordinary Shares than the number of Firm Shares in the offering
and as set forth in Section 5 hereof. Any such election to purchase Option Shares shall be made in
the proportion that the maximum number of Option Shares to be sold by each Selling Shareholder as
set forth in Schedule 2 hereto bears to the aggregate maximum number of all Option Shares
to be sold among the Selling Shareholders as set forth in Schedule 2 hereto. Each
Underwriter agrees, severally and not jointly, to purchase the number of shares of Option Shares
(subject to such adjustments to eliminate fractional shares as the Representatives may determine)
that bears the same proportion to the total number of shares of Option Shares to be sold on such
Delivery Date as the number of shares of Firm Shares set forth in Schedule 1 hereto
opposite the name of such Underwriter bears to the total number of shares of Firm Shares.
The price of both the Firm Shares and any Option Shares purchased by the Underwriters shall be
$27.25 per share.
The Selling Shareholders shall not be obligated to deliver any of the Firm Shares or Option
Shares to be delivered on the applicable Delivery Date, except upon payment for all such Shares to
be purchased on such Delivery Date as provided herein.
4. Offering of Shares by the Underwriters. Upon authorization by the Representatives of the
release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions to be set forth in the Prospectus.
5. Delivery of and Payment for the Shares. The Representatives shall acquire security
entitlements with respect to the Firm Shares and payment therefor shall be made at a
closing to take place at the office of Xxxxxx & Xxxxxxx LLP at 000 Xxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000 at 9:00 a.m., New York City time, on the third full business day following the
date of this Agreement or at such other date as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to as the “Initial
Delivery Date.” Delivery of the Firm Shares shall be made to the Representatives for the account
of each Underwriter against payment by the several Underwriters through the Representatives of the
respective aggregate purchase prices of the Firm Shares being sold by the Selling Shareholders to
or upon the order of the Selling Shareholders of the purchase price by wire transfer in immediately
available funds to the accounts specified by the Selling Shareholders. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. The Selling Shareholders shall deliver
the Firm Shares through the facilities of DTC unless the Representatives shall otherwise instruct.
The option granted in Section 3 will expire 30 days after the date of this Agreement and may
be exercised in whole or from time to time in part by written notice being given to the Selling
Shareholders by the Representatives; provided that if such date falls on a day that is not a
business day, the option granted in Section 3 will expire on the next succeeding business day.
Such notice shall set forth the aggregate number of shares of Option Shares as to which the option
is being exercised, the names in which the shares of Option Shares are to be registered, the
denominations in which the shares of Option Shares are to be issued and the date and time, as
determined by the Representatives, when the shares of Option Shares are to be delivered; provided,
however, that this date and time shall not be earlier than the Initial Delivery Date nor earlier
than the second business day after the date on which the option shall have been exercised nor later
than the fifth business day after the date on which the option shall have been exercised. Each
date and time the shares of Option Shares are delivered is sometimes referred to as an “Option
Shares Delivery Date,” and the Initial Delivery Date and any Option Shares Delivery Date are
sometimes each referred to as a “Delivery Date.”
Delivery of the Option Shares by the Selling Shareholders and payment for the Option Shares by
the several Underwriters through the Representatives shall be made at 9:00 a.m., New York City
time, on the date specified in the corresponding notice described in the preceding paragraph or at
such other date or place as shall be determined by agreement between the Representatives and the
Company. On the Option Shares Delivery Date, the Selling Shareholders shall deliver or cause to be
delivered the Option Shares to the Representatives for the account of each Underwriter against
payment by the several Underwriters through the Representatives of the respective aggregate
purchase prices of the Option Shares being sold by the Selling Shareholders to or upon the order of
the Selling Shareholders of the purchase price by wire transfer in immediately available funds to
the accounts specified by the Selling Shareholders. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. The Selling Shareholders shall deliver the Option Shares through the
facilities of DTC unless the Representatives shall otherwise instruct.
6. Further Agreements of the Company and the Underwriters. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) in a form containing information previously omitted
at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B
or 430C 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; to make no
further amendment or any supplement to the Registration Statement or the Prospectus prior to
the last Delivery Date except as provided herein; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment or supplement to the
Registration Statement, or the Prospectus has been filed and to furnish the Representatives
with copies thereof; to timely file all reports and any definitive proxy or information
statements required to be filed by the company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus in connection with the offering or sale of the
Shares; to advise the Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding or examination for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement, the Prospectus
or any Issuer Free Writing Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal; and to pay the applicable Commission
filing fees relating to the Shares within the time required by Rule 456(b)(1);
(ii) To furnish promptly to each of the Representatives and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission, including all consents and
exhibits filed therewith;
(iii) To deliver promptly to the Representatives such number of the following documents
as the Representatives shall reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement), (B) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing
Prospectus and (D) an electronic copy of any document incorporated by reference in the
Registration Statement, the Pricing Disclosure Package or the Prospectus; and, if the
delivery of a prospectus is required at any time after the date hereof in connection with
the offering or sale of the Shares or any other securities relating thereto and if at such
time any events shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Representatives and, upon their request, to file such
document and to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time reasonably request of
an amended or supplemented Prospectus (excluding any documents incorporated by reference
therein) that will correct such statement or omission or effect such compliance;
(iv) To use its commercially reasonable efforts to file promptly with the Commission
any amendment or supplement to the Registration Statement or the Prospectus that may, in the
judgment of the Company or the Representatives, be required by the Securities Act or
requested by the Commission;
(v) Prior to filing with the Commission any amendment or supplement to the Registration
Statement, the Prospectus or any document incorporated by reference in the Prospectus, to
furnish a copy thereof to the Representatives and counsel for the Underwriters and not file
any such proposed amendment or supplement to the Registration Statement or the Prospectus to
which the Representatives reasonably object;
(vi) Not to make any offer relating to the Shares that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the Representatives;
(vii) To comply with all applicable requirements of Rule 433 with respect to any Issuer
Free Writing Prospectus; and if at any time after the date hereof any events shall have
occurred as a result of which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the Registration Statement, the Pricing
Disclosure Package or the Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or, if for any other
reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to
notify the Representatives and, upon their request, to file such document and to prepare and
furnish without charge to each Underwriter as many copies as the Representatives may from
time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus
that will correct such conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective Date, to make generally available to
the Company’s securityholders and to deliver to the Representatives an earnings statement of
the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option of the Company,
Rule 158);
(ix) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify the Shares for offering and sale under the securities laws of
Canada and to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Shares; provided that in connection therewith the Company shall not be required to
(i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be
required to so qualify, (ii) file a general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not
otherwise be subject;
(x) If at any time when Shares remain unsold by the Underwriters the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or
otherwise ceases to be eligible to use the automatic shelf registration statement form, the
Company will (i) promptly notify the Representatives, (ii) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Shares, in a form
satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such
registration statement or post-effective amendment to be declared effective as soon as
practicable (if such filing is not otherwise effective immediately pursuant to Rule 462
under the Securities Act), and (iv) promptly notify the Representatives of such
effectiveness. The Company will take all other action necessary or appropriate to permit
the public offering and sale of the Shares to continue as contemplated in the Registration
Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act
or for which the Company has otherwise become ineligible. References herein to the
Registration Statement relating to the Shares shall include such new registration statement
or post-effective amendment, as the case may be; and
(xi) For a period commencing on the date hereof and ending on the 60th day after the
date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at any time in
the future of) any shares of Ordinary Shares or securities convertible into or exchangeable
for Ordinary Shares (other than the Shares and shares authorized on the date hereof to be
issued pursuant to employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof or pursuant to currently outstanding options,
warrants or rights not issued under one of those plans), or sell or grant options, rights or
warrants with respect to any shares of Ordinary Shares or securities convertible into or
exchangeable for Ordinary Shares (other than the grant of options pursuant to compensatory
option plans existing on the date hereof), (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of such shares of Ordinary Shares, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Ordinary Shares or other
securities, in cash or otherwise, (3) file or cause to be filed a registration statement,
including any amendments, with respect to the registration of any shares of Ordinary Shares
or securities convertible, exercisable or exchangeable into Ordinary Shares or any other
securities of the Company (other than any registration statement on Form S-8) or (4)
publicly disclose the intention to do any of
the foregoing, in each case without the prior written consent of Deutsche Bank
Securities Inc. and Barclays Capital Inc.; provided that the foregoing restrictions shall
not apply to the issuance of securities of the Company (the “Acquisition Securities”) in an
amount up to an aggregate of 15% of the sum of the Company’s fully-diluted ordinary shares
outstanding as of the date of the Prospectus, in exchange for the assets or equity of
another entity in connection with the acquisition by the Company of, or joint venture with,
such entity, provided, however, that the recipient of any such Acquisition Securities shall
agree in writing to be bound by the terms of this Section 6(a)(xi); and
(b) Each Underwriter severally agrees that it shall not include any “issuer information” (as
defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or referred to
by such Underwriter without the prior consent of the Company (any such issuer information with
respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided
that (i) no such consent shall be required with respect to any such issuer information contained in
any document filed by the Company with the Commission prior to the use of such free writing
prospectus and (ii) “issuer information,” as used in this Section 6(b), shall not be deemed to
include information prepared by or on behalf of such Underwriter on the basis of or derived from
issuer information.
7. Further Agreements of the Selling Shareholders. Each Selling Shareholder agrees:
(a) That the Shares to be sold by the Selling Shareholder hereunder, which are
represented by the certificates held in custody for the Selling Shareholder, are subject to
the interests of the Underwriters and the other Selling Shareholders thereunder, that the
arrangements made by the Selling Shareholder for such custody are to that extent
irrevocable, and that the obligations of the Selling Shareholder hereunder shall not be
terminated by any act of the Selling Shareholder, by operation of law, by the death or
incapacity of any individual Selling Shareholder or, in the case of a trust, by death or
incapacity of any executor or trustee or the termination of such trust, or the occurrence of
any other event;
(b) Neither the Selling Shareholder nor any person acting on behalf of the Selling
Shareholder (other than, if applicable, the Company and the Underwriters) shall use or refer
to any “free writing prospectus” (as defined in Rule 405), relating to the Shares; and
(c) To deliver to the Representatives prior to the Initial Delivery Date a properly
completed and executed United States Treasury Department Form W-8 (if the Selling
Shareholder is a non-United States person) or Form W-9 (if the Selling Shareholder is a
United States person).
8. Expenses. The Company agrees, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and
taxes incident to and in connection with (a) the preparation, printing and filing under the
Securities Act of the Registration Statement (including any exhibits thereto), the Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any
amendment or supplement thereto; (b) the distribution of the Registration Statement (including
any exhibits thereto), the Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto, or any document incorporated by reference
therein, all as provided in this Agreement; (c) the production and distribution of this Agreement,
any supplemental agreement among the Underwriters, and any other related documents in connection
with the offering, purchase, sale and delivery of the Shares; (d) the delivery and distribution of
the Custody Agreements and the Powers of Attorney and the fees and expenses of the Custodian (and
any other attorney-in-fact); (e) any required review by FINRA of the terms of sale of the Shares
(including related fees and expenses of counsel to the Underwriters in an amount that is not
greater than $10,000); (f) the listing of the Shares on The NASDAQ Global Select Market; (g) the
qualification of the Shares under the securities laws of the several jurisdictions as provided in
Section 6(a)(ix) and the preparation, printing and distribution of a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriters in an amount that is not greater than
$5,000); (h) the preparation, printing and distribution of one or more versions of the Preliminary
Prospectus and the Prospectus for distribution in Canada, in the form of a Canadian “wrapper”
(including related fees and expenses of Canadian counsel to the Underwriters in an amount that is
not greater than $5,000); and (i) all other costs and expenses incident to the performance of the
obligations of the Company and the Selling Shareholders under this Agreement; provided that, the
Underwriters shall reimburse the Company for the costs, expenses and fees incurred by the Company
in connection with the transactions contemplated by this Agreement in an amount not to exceed
$350,000; provided further that, except as provided in this Section 8 and in Section 13, the
Underwriters shall pay their own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Shares which they may sell and the expenses of advertising any
offering of the Shares made by the Underwriters.
9. Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations
and warranties of the Company and the Selling Shareholders contained herein, to the performance by
the Company and the Selling Shareholders of their respective obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 6(a)(i); the Company shall have complied with all filing requirements applicable to
any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order
suspending the effectiveness of the Registration Statement or preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no
proceeding or examination for such purpose shall have been initiated or threatened by the
Commission; any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied with; and the
Commission shall not have notified the Company of any objection to the use of the form of
the Registration Statement.
(b) Xxxxxx & Xxxxxxx LLP shall have furnished to the Representatives its written
opinion, as U.S. counsel to the Company, addressed to the Underwriters and
dated such Delivery Date, in form and substance reasonably satisfactory to the
Representatives.
(c) WongPartnership LLP shall have furnished to the Representatives its written
opinion, as special Singapore counsel to the Company, addressed to the Underwriters and
dated such Delivery Date, in form and substance reasonably satisfactory to the
Representatives.
(d) The respective counsel for Bali Investments S.àr.l., Seletar Investments Pte Ltd
and Geyser Investment Pte Ltd shall have furnished to the Representatives its written
opinion, as counsel to the Selling Shareholders for whom it is acting as counsel, addressed
to the Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Representatives.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, U.S.
counsel for the Underwriters, such opinion or opinions, dated such Delivery Date, with
respect to such matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) The Representatives shall have received from Xxxxx & Xxxxxxxx LLP, special
Singapore counsel for the Underwriters, such opinion or opinions, dated such Delivery Date,
with respect to such matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representatives shall have received
from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the Preliminary Prospectus and the
Prospectus, as of a date not more than three days prior to the date hereof), the conclusions
and findings of such firm with respect to the financial information and other matters
ordinarily covered by accountants’ “comfort letters” to underwriters in connection with
registered public offerings.
(h) With respect to the letter of PricewaterhouseCoopers LLP referred to in the
preceding paragraph and delivered to the Representatives concurrently with the execution of
this Agreement (the “initial letter”), such accountants, if requested by the
Representatives, shall have delivered to the Underwriters a letter (the “bring-down letter”)
of such accountants, addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission,
(ii) stating, as of the date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three days prior to the
date of the bring-down letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth in the initial
letter.
(i) The Company shall have furnished to the Representatives a certificate, dated such
Delivery Date, of the Company executed on its behalf by its Chief Executive Officer and its
Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1
are true and correct on and as of such Delivery Date, and the Company has complied
with all its agreements contained herein and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to such Delivery Date; and
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued; and no proceedings or examination for that purpose have been
instituted or, to the knowledge of such officers, threatened.
(j) Each Selling Shareholder (or the Custodian or one or more attorneys-in-fact on
behalf of the Selling Shareholders) shall have furnished to the Representatives on such
Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the
Selling Shareholder (or the Custodian or one or more attorneys-in-fact) stating that the
representations, warranties and agreements of the Selling Shareholder contained herein are
true and correct on and as of such Delivery Date and that the Selling Shareholder has
complied with all its agreements contained herein and has satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to such Delivery Date.
(k) Except as described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, (i) neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or
decree or (ii) since such date there shall not have been any change in the share capital or
long-term debt of the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise),
results of operations, shareholders’ equity, properties, management, business or prospects
of the Company and its subsidiaries taken as a whole, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered on such
Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) [Reserved]
(m) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange or the NASDAQ Global Market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or materially limited
or the settlement of such trading generally shall have been materially disrupted or minimum
prices shall have been established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by federal or state authorities, (iii)
the United States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or financial conditions, including,
without limitation, as a result of terrorist activities after the date hereof (or the effect
of international conditions on the financial markets in the United States shall be such), as
to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed
with the public offering or delivery of the Shares being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(n) Letter agreements, substantially in the form of Exhibit A hereto, between
the Representatives and the securityholders of the Company set forth on Schedule 3,
shall have been delivered to the Representatives on or before the date of this Agreement and
shall be in full force and effect on such Delivery Date.
(o) No stop order suspending the qualification or exemption from qualification of the
Shares in any jurisdiction shall have been issued, and no proceeding for that purpose shall
have been commenced.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its directors,
officers and employees, each person, if any, who controls any Underwriter within the meaning
of Section 15 of the Securities Act and each affiliate of any Underwriter within the meaning
of Rule 405 under the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of Shares), to which that
Underwriter, director, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in (A) the
Registration Statement, the Preliminary Prospectus, the Prospectus or in any amendment or
supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment or supplement
thereto, (C) any Permitted Issuer Information used or referred to in any “free writing
prospectus” (as defined in Rule 405) used or referred to by any Underwriter or (D) any “road
show” (as defined in Rule 433) not constituting an Issuer Free Writing Prospectus (a
“Non-Prospectus Road Show”) or (ii) the omission or alleged omission to state in the
Registration Statement, the Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information
or any Non-Prospectus Road Show, any material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse each
Underwriter and each such director, officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter, director,
officer, employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or in any such amendment or supplement thereto or in any
Permitted Issuer Information or any Non-Prospectus Road Show, in reliance upon and in
conformity with written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically for inclusion
therein, which information consists solely of the information specified in Section 10(f).
The foregoing indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any director, officer, employee or controlling
person of that Underwriter.
(b) The Selling Shareholders, severally in proportion to the number of Shares to be
sold by each of them hereunder, shall indemnify and hold harmless each Underwriter, its
directors, officers and employees, each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act and each affiliate of any Underwriter within
the meaning of Rule 405 under the Securities Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales of Shares),
to which that Underwriter, director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Permitted Issuer Information, any Non-Prospectus Road Show or
any “free writing prospectus” (as defined in Rule 405), prepared by or on behalf of the
Selling Shareholder or used or referred to by the Selling Shareholder in connection with the
offering of the Shares in violation of Section 7(b) (a “Selling Shareholder Free Writing
Prospectus”), (ii) the
omission or alleged omission to state in the Registration Statement, the Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Permitted Issuer Information, any Non-Prospectus Road Show or
any Selling Shareholder Free Writing Prospectus, any material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall reimburse each
Underwriter, its directors, officers and employees and each such controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that Underwriter, its
directors, officers and employees or controlling persons in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred or (iii) any breach of any representation or warranty of the
Selling Shareholders in this Agreement or any certificate or other agreement delivered
pursuant hereto or contemplated hereby; provided, however, that each Selling Shareholder
shall be liable in any such case only to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, the
Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any such
amendment or supplement or in any Permitted Issuer Information or any Non-Prospectus Road
Show in reliance upon and in conformity with written information concerning such Selling
Shareholder furnished to the Company by such Selling Shareholder specifically for inclusion
therein, or arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission made in any Selling Shareholder Free Writing Prospectus. The
liability of the Selling Shareholder under the indemnity agreement contained in this
paragraph shall be limited to an amount equal to the total net proceeds (after deducting
underwriters’ discounts and commissions but before deducting expenses) from the offering of
the Shares purchased under the Agreement received by the Selling Shareholder, as set forth
in the table on the cover page of the Prospectus. The foregoing indemnity agreement is in
addition to any liability that the Selling Shareholders may otherwise have to any
Underwriter or any officer, employee or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, each Selling Shareholder, their respective directors, officers and employees and
each person, if any, who controls the Company or such Selling Shareholder within the meaning
of Section 15 of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company, such Selling
Shareholder or any such director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Non-Prospectus Road Show, or (ii) the omission or alleged
omission to state in the Registration Statement, the Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus Road Show, any material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for inclusion therein,
which information is limited to the information set forth in Section 10(f). The foregoing
indemnity agreement is in addition to any liability that any Underwriter may otherwise have
to the Company, such Selling Shareholder or any such director, officer, employee or
controlling person.
(d) Promptly after receipt by an indemnified party under this Section 10 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section 10, notify
the indemnifying party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has been
materially prejudiced by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 10. If any such claim or action shall
be brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have the right to employ
one counsel (plus one local counsel) to represent jointly the indemnified party and those
other indemnified parties and their respective directors, officers, employees and
controlling persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought under this Section 10 if (i) the indemnified party and the
indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed
within a reasonable time of such notice to the indemnified party to retain counsel
reasonably satisfactory to the indemnified party to assume the defense of such claim or
action; (iii) the indemnified party and its directors, officers, employees and controlling
persons shall have reasonably concluded that there may be legal defenses available to them
that are different from or in addition to those available to the indemnifying party; or (iv)
the named parties in any such proceeding (including any impleaded parties) include both the
indemnified parties or their respective directors, officers, employees or controlling
persons, on the one hand, and the indemnifying party, on the other hand, and representation
of both sets of parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, and in any such event the fees and expenses of
such separate counsel shall be paid by the indemnifying party. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or
consent includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not include any findings of
fact or admissions of fault or culpability as to the indemnified party, or (ii) be liable
for any settlement of any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Section 10(a),
10(b), or 10(c) in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders, on the one hand, and the Underwriters, on the other,
from the offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Shareholders, on the one hand, and the Underwriters, on the other,
with respect to the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling Shareholders,
on the one hand, and the Underwriters, on the other, with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering of the
Shares purchased under this Agreement (after deducting underwriters’ discounts and
commissions but before deducting expenses) received by the Company and the Selling
Shareholders, as set forth in the table on the cover page of the Prospectus, on the one
hand, and the total underwriting discounts and commissions received by the Underwriters with
respect to the Shares purchased under this Agreement, as set forth in the table on the cover
page of the Prospectus, on the other hand. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company,
the Selling Shareholders or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Shareholders and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 10(e) were to be
determined by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10(e) shall be deemed to include, for purposes of this
Section 10(e), any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10(e), the Underwriters shall not be required to contribute any
amount in excess of the amount by
which the net proceeds from the sale of the Shares underwritten by it exceeds the
amount of any damages that such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged omission, and no
Selling Shareholder shall be required to contribute any amount in excess of the net proceeds
(after deducting underwriters’ discounts and commissions but before deducting expenses) such
Selling Shareholder received from the sale of its Shares in the Offering. 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. The Underwriters’ obligations to contribute as provided in this Section
10(e) are several in proportion to their respective underwriting obligations and not joint.
(f) The Underwriters severally confirm and the Company and each Selling Shareholder
acknowledges and agrees that the statements regarding delivery of shares by the Underwriters
set forth on the cover page of, and the paragraphs relating to stabilization by the
Underwriters appearing under the caption “Underwriting” in, the Preliminary Prospectus and
the Prospectus are correct and constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement, the Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto, or in any
Non-Prospectus Road Show.
11. Defaulting Underwriters. If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Shares that the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of shares of the Firm
Shares set forth opposite the name of each remaining non-defaulting Underwriter in Schedule
1 hereto bears to the total number of shares of the Firm Shares set forth opposite the names of
all the remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however, that
the remaining non-defaulting Underwriters shall not be obligated to purchase any of the Shares on
such Delivery Date if the total number of Shares that the defaulting Underwriter or Underwriters
agreed but failed to purchase on such date exceeds 9.09% of the total number of the Shares to be
purchased on such Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of Shares that it agreed to purchase on such
Delivery Date pursuant to the terms of Section 3. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Shares to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to the Representatives do
not elect to purchase the shares that the defaulting Underwriter or Underwriters agreed but failed
to purchase on such Delivery Date, this Agreement (or, with respect to any Option Shares Delivery
Date, the obligation of the Underwriters to purchase, and of the Selling Shareholders to sell, the
Option Shares) shall terminate without liability on the part of any non-defaulting Underwriter or
the Company or the Selling Shareholders, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 8 and 13. As used in this Agreement, the
term “Underwriter” includes, for all purposes of this Agreement unless the context requires
otherwise,
any party not listed in Schedule 1 hereto that, pursuant to this Section 11, purchases
Shares that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company and the Selling Shareholders for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Shares of a defaulting or withdrawing
Underwriter, either the Representatives or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
12. Termination. The obligations of the Underwriters hereunder may be terminated by the
Representatives by notice given to and received by the Company and the Selling Shareholders prior
to delivery of and payment for the Firm Shares if, prior to that time, any of the events described
in Sections 9(k) and 9(m) shall have occurred or if the Underwriters shall decline to purchase the
Shares for any reason permitted under this Agreement.
13. Reimbursement of Underwriters’ Expenses. If any Selling Shareholder shall fail to tender
the Shares for delivery to the Underwriters for any reason or the Underwriters shall decline to
purchase the Shares for any reason permitted under this Agreement, the Company and the Selling
Shareholders will reimburse the Underwriters for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) incurred by the Underwriters in connection with this Agreement
and the proposed purchase of the Shares, and upon demand the Company and the Selling Shareholders
shall pay the full amount thereof to the Representatives. If the Company is required to make any
payments to the Underwriters under this Section 13 because of any Selling Shareholder’s refusal,
inability or failure to satisfy any condition to the obligations of the Underwriters set forth in
Section 9, such Selling Shareholders pro rata, in proportion to the percentage of Shares to be sold
by each, shall reimburse the Company on demand for all amounts so paid. If this Agreement is
terminated pursuant to Section 11 by reason of the default of one or more Underwriters, neither the
Company nor any Selling Shareholder shall be obligated to reimburse any defaulting Underwriter on
account of those expenses.
14. Research Analyst Independence. The Company acknowledges that the Underwriters’ research
analysts and research departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering that differ from
the views of their respective investment banking divisions. The Company and the Selling
Shareholders hereby waive and release, to the fullest extent permitted by law, any claims that the
Company or the Selling Shareholders may have against the Underwriters with respect to any conflict
of interest that may arise from the fact that the views expressed by their independent research
analysts and research departments may be different from or inconsistent with the views or advice
communicated to the Company or the Selling Shareholders by such Underwriters’ investment banking
divisions. The Company and the Selling Shareholders acknowledge that each of the Underwriters is a
full service securities firm and as such from time to time, subject to applicable securities laws,
may effect transactions for
its own account or the account of its customers and hold long or short positions in debt or
equity securities of the companies that may be the subject of the transactions contemplated by this
Agreement.
15. No Fiduciary Duty. The Company and the Selling Shareholders acknowledge and agree that in
connection with this offering, sale of the Shares or any other services the Underwriters may be
deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances previously or subsequently
made by the Underwriters: (i) no fiduciary or agency relationship between the Company, Selling
Shareholders and any other person, on the one hand, and the Underwriters, on the other, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to either the Company or the
Selling Shareholders, including, without limitation, with respect to the determination of the
public offering price of the Shares, and such relationship between the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other, is entirely and solely
commercial, based on arms-length negotiations; (iii) any duties and obligations that the
Underwriters may have to the Company or Selling Shareholders shall be limited to those duties and
obligations specifically stated herein; and (iv) the Underwriters and their respective affiliates
may have interests that differ from those of the Company and the Selling Shareholders. The Company
and the Selling Shareholders hereby waive any claims that the Company or the Selling Shareholders
may have against the Underwriters with respect to any breach of fiduciary duty in connection with
this offering.
16. Notices, Etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile
transmission to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Manager, with a copy, in the case of any notice
pursuant to Section 10(d), to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and to Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Syndicate Registration (Fax: 000-000-0000), with a copy, in
the case of any notice pursuant to Section 10(d), to the Director of Litigation,
Office of the General Counsel, Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (Fax: 000-000-0000);
(b) if to the Company, shall be delivered or sent by mail or facsimile
transmission to the address of the Company set forth in the Registration Statement,
Attention: General Counsel (Fax: (000) 000-0000) or to the Company in care of the
Process Agent, with a copy to Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxxxxxxx Xxxxxxx and Xxxxxxx X. Xxxxxxxx (Fax:
000-000-0000); and
(c) if to any Selling Shareholders, shall be delivered or sent by mail or
facsimile transmission to such Selling Shareholder in care of the Process Agent or
such other address as shall be provided by a Selling Shareholder to the Company and
the Underwriters.
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof (including receipt by the Process Agent). The Company and the Selling Shareholders shall
be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf
of the Underwriters by Deutsche Bank Securities Inc. and Barclays Capital Inc., and the Company and
the Underwriters shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Selling Shareholders by the Custodian or one or more
attorneys-in-fact.
17. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, the Selling Shareholders and their respective
successors. This Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and agreements of the
Company and the Selling Shareholders contained in this Agreement shall also be deemed to be for the
benefit of the directors, officers and employees of the Underwriters, each person or persons, if
any, who control any Underwriter within the meaning of Section 15 of the Securities Act and each
affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act and (B) the
indemnity agreement of the Underwriters contained in Section 10(c) of this Agreement shall be
deemed to be for the benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement and any person controlling the Company within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 17, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein.
18. Survival. The respective indemnities, representations, warranties and agreements of the
Company, the Selling Shareholders and the Underwriters contained in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment
for the Shares and shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
19. Definition of the Terms “Business Day” and “Subsidiary.” For purposes of this Agreement,
(a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on
which banking institutions in New York are generally authorized or obligated by law or executive
order to close and (b) “subsidiary” has the meaning set forth in Rule 405.
20. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
21. Submission to Jurisdiction, Etc. The Company and each Selling Shareholder hereby submits
to the non-exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of
Manhattan, The City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any lawsuit, action or other
proceeding in such courts, and hereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such lawsuit, action or other proceeding
brought in any such court has been brought in an inconvenient forum. The Company and each
Selling Shareholder irrevocably appoint Corporation Service Company, 1133 Avenue of the Americas,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000-0000 (the “Process Agent”), as their respective authorized
agent in the Borough of Manhattan, The City of New York, New York upon which process may be served
in any such suit or proceeding in a manner permitted by applicable law, and agree that service of
process upon such agent in a manner permitted by applicable law, and written notice of said service
to the Company or the Selling Shareholder, as the case may be, by the person serving the same to
the address provided in Section 16 shall be deemed in every respect effective service of process
upon the Company or the Selling Shareholder in any such suit or proceeding. The Company and each
Selling Shareholder further agree to take any and all actions as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period of seven years from
the date of this Agreement.
22. Waiver of Immunity. With respect to any suit or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby, each party irrevocably waives, to the
fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or
otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and
execution to which it might otherwise be entitled, and with respect to any such suit or proceeding,
each party waives any such immunity in any court of competent jurisdiction, and will not raise or
claim or cause to be pleaded any such immunity at or in respect of any such suit or proceeding,
including, without limitation, any immunity pursuant to the U.S. Foreign Sovereign Immunities Act
of 1976, as amended.
23. Judgment Currency. The obligation of the Company and each Selling Shareholder in respect
of any sum due to any Underwriter under this Agreement shall, notwithstanding any judgment in a
currency other than U.S. dollars or any other applicable currency (the “Judgment Currency”), not be
discharged until the first business day, following receipt by such Underwriter of any sum adjudged
to be so due in the Judgment Currency, on which (and only to the extent that) such Underwriter may
in accordance with normal banking procedures purchase U.S. dollars or any other applicable currency
with the Judgment Currency; if the U.S. dollars or other applicable currency so purchased are less
than the sum originally due to such Underwriter hereunder, the Company and each Selling Shareholder
agree, as a separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss. If the U.S. dollars or other applicable currency so purchased are
greater than the sum originally due to such Underwriter hereunder, such Underwriter agrees to pay
to the Company or the Selling Shareholder, as the case may be, an amount equal to the excess of the
U.S. dollars or other applicable currency so purchased over the sum originally due to such
Underwriter hereunder.
24. Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same instrument.
25. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[Signature pages follow]
If the foregoing correctly sets forth the agreement among the Company, the Selling
Shareholders and the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
| Very truly yours, AVAGO TECHNOLOGIES LIMITED |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| BALI INVESTMENTS S.ÀR.L. |
||||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxx Xxx | |||
| Title: | Manager | |||
| THE OTHER SELLING SHAREHOLDERS NAMED IN SCHEDULE 2 TO THIS AGREEMENT |
||||
| By: | /s/ Xxxxxxxx XxXxxx | |||
| Attorney-in-Fact | ||||
| Name: | Xxxxxxxx XxXxxx | |||
| Title: | Vice President and General Counsel |
|||
| Accepted: By Deutsche Bank Securities Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Managing Director | |||
| By Barclays Capital Inc. |
||||
| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | Vice President | |||
SCHEDULE 1
| Number of | ||||
| Underwriter | Firm Shares | |||
Deutsche Bank Securities Inc. |
12,500,000 | |||
Barclays Capital Inc. |
12,500,000 | |||
Total |
25,000,000 | |||
SCHEDULE 2
| Number of | Number of | |||||||||
| Shares of | Shares of | |||||||||
| Name and Address of Selling Shareholder | Firm Shares | Option Shares | ||||||||
| 1. | Bali Investments S.àr.l 00 xxx xx Xxxxxxxxxxxxxx X0000 Xxxxxxxxxx |
20,457,108 | 0 | |||||||
| 2. | Seletar Investments Pte Ltd 00X Xxxxxxx Xxxx #00-00 Tower 2 The Atrium @ Xxxxxxx Xxxxxxxxx 000000 |
2,675,121 | 2,250,000 | |||||||
| 3. | Geyser Investment Pte. Ltd. c/o GIC 000 Xxxxxxxx Xxxx #00-00 Xxxxxxx Xxxxx Xxxxxxxxx 000000 |
1,783,414 | 1,500,000 | |||||||
| 4. | Capstone Equity Investors LLC 0 Xxxx 00xx Xxxxxx, 00 Xxxxx Xxx Xxxx, XX 00000 |
84,357 | 0 | |||||||
TOTAL |
25,000,000 | 3,750,000 | ||||||||
SCHEDULE 3
PERSONS DELIVERING LOCK-UP AGREEMENTS
Securityholders
| 1. | Bali Investments S.àr.l |
| 2. | Seletar Investments Pte Ltd |
| 3. | Geyser Investment Pte. Ltd. |
| 4. | Capstone Equity Investors LLC |
EXHIBIT A
LOCK-UP LETTER AGREEMENT
Deutsche Bank Securities Inc.
Barclays Capital Inc.
As Representatives of the several
Underwriters named in Schedule 1
to the Underwriting Agreement
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Barclays Capital Inc.
As Representatives of the several
Underwriters named in Schedule 1
to the Underwriting Agreement
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you (the “Underwriters”) propose to enter into an
Underwriting Agreement (the “Underwriting Agreement”) providing for the purchase by the
Underwriters of shares (the “Shares”) of Ordinary Shares, no par value per share (the
“Ordinary Shares”), of Avago Technologies Limited, a company organized under the laws of
Singapore (the “Company”), and that the Underwriters propose to reoffer the Shares to the public
(the “Offering”).
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for
other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the
prior written consent of each of Deutsche Bank Securities Inc. and Barclays Capital Inc., on behalf
of the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell,
pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at any time in the future of) any
Ordinary Shares (including, without limitation, Ordinary Shares that may be deemed to be
beneficially owned by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and Ordinary Shares that may be issued upon exercise of any
options or warrants) or securities convertible into or exercisable or exchangeable for Ordinary
Shares (other than the Shares, if any, sold by the undersigned to the Underwriters in the
Offering), (2) enter into any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of Ordinary Shares, whether
any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary
Shares or other securities, in cash or otherwise, (3) other than with respect to the registration
of Shares, if any, to be sold by the undersigned to the Underwriters in the Offering, make any
demand for or exercise
any right or cause to be filed a registration statement, including any amendments thereto,
with respect to the registration of any Ordinary Shares or securities convertible into or
exercisable or exchangeable for Ordinary Shares or any other securities of the Company or (4)
publicly disclose the intention to do any of the foregoing, for a period commencing on the date
hereof and ending on the 60th day after the date of the final prospectus supplement relating to the
Offering (such 60-day period, the “Lock-Up Period”).
The foregoing sentence shall not apply to:
(a) bona fide gifts, sales or other dispositions of shares of any class of the Company’s share
capital, in each case that are made exclusively (1) between and/or among the undersigned or members
of the undersigned’s family, (2) between the undersigned and a trust for the direct or indirect
benefit of the undersigned or members of the undersigned’s family, (3) between the undersigned and
any third party granted an interest in the undersigned’s will or under the laws of descent, (4)
between the undersigned and affiliates of the undersigned, including its partners (if a
partnership) or members (if a limited liability company) or (5) involving Ordinary Shares acquired
by the undersigned in open market transactions after the completion of this Offering; provided
that, in the cases of (1) through (4) above, it shall be a condition to any such transfer that the
transferee/donee agrees to be bound by the terms of this Lock-Up Letter Agreement (including,
without limitation, the restrictions set forth in the preceding sentence) to the same extent as if
the transferee/donee were a party hereto; and provided further that, in the cases of (1) through
(5) above, it shall be a condition to any such transfer that (i) no filing by any party (donor,
donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), shall be required or shall be voluntarily made in connection with such transfer or
distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A)
made after the expiration of the 60-day period referred to above), and (ii) each party (donor,
donee, transferor or transferee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make,
and shall agree to not voluntarily make, any public announcement of the transfer or disposition; or
(b) entering into a written plan meeting the requirements of Rule 10b5-1(c) under the Exchange
Act, provided that no sales of the Company’s securities shall occur under such plan during the
Lock-Up period.
In furtherance of the foregoing, the Company and its transfer agent are hereby authorized to
decline to make any transfer of securities if such transfer would constitute a violation or breach
of this Lock-Up Letter Agreement.
It is understood that the undersigned will be released from its obligations under this Lock-Up
Letter Agreement, (1) if the Company notifies the Underwriters that it does not intend to proceed
with the Offering, or (2) if the Underwriting Agreement (other than the provisions thereof which
survive termination) shall terminate or be terminated prior to payment for and delivery of the
Shares.
The undersigned understands that the Company and the Underwriters will proceed with
the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Company, any selling shareholders named therein and
the Underwriters.
[Signature page follows]
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will
execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
| Very truly yours, [NAME OF SHAREHOLDER] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Dated: January __, 2011
