1
EXHIBIT 1.1
1,312,500 SHARES
FLEXTRONICS INTERNATIONAL LTD.
ORDINARY SHARES
_____________________
U.S. UNDERWRITING AGREEMENT
_____________________
______ __, 1997
XXXXXXXXXX SECURITIES
XXXXX & COMPANY
UBS SECURITIES
c/x XXXXXXXXXX SECURITIES
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Dear Sirs:
1. Introductory. Flextronics International Ltd., a Singapore
company (the "Company"), proposes to issue and sell 1,312,500 of its authorized
but unissued Ordinary Shares S$.01 par value each in the capital of the Company
(the "Ordinary Shares") to the several underwriters named in Schedule A annexed
hereto (the "Underwriters"), for whom you are acting as Representatives. The
1,312,500 shares to be sold by the Company are referred to as the "Firm Common
Shares." In addition, the Company proposes to grant to the Underwriters an
option to purchase up to 196,875 additional Ordinary Shares (the "Optional
Common Shares"), as provided in Section 4 hereof. The Firm Common Shares and,
to the extent such option is exercised, the Optional Common Shares are
hereinafter collectively referred to as the "Common Shares."
It is understood that the Company is concurrently entering into
an agreement dated the date hereof (the "International Underwriting Agreement")
providing for (i) the offering by the Company of 437,500 Ordinary Shares (the
"Firm International Common Shares") through arrangements with certain
underwriters outside the United States and Canada (the "International
Managers"), and (ii) the grant by the Company to the International Managers of
an option to purchase up to 65,625 additional Ordinary Shares solely to cover
over-allotments, if any. It is understood that the Company is not obligated to
sell, and the Underwriters are not obligated to purchase, any Firm Common
Shares unless all of the Firm International Common Shares are contemporaneously
purchased by the International Managers.
-1-
2
The Underwriters and the International Managers will concurrently
enter into an Intersyndicate Agreement of even date herewith providing for the
coordination of certain transactions among the Underwriters and the
International Managers under the direction of Xxxxxxxxxx Securities.
You have advised the Company that the Underwriters propose to
make a public offering of the Common Shares on the effective date of the
registration statement hereinafter referred to, or as soon thereafter as in
your judgment is advisable.
The Company hereby confirms its agreement with respect to the
purchase of the Common Shares by the Underwriters as follows:
2. Representations and Warranties of the Company. The Company
hereby represents, warrants and covenants to each Underwriter as follows:
(a) A registration statement on Form S-3 (File No.
333-_____) with respect to the Common Shares has been prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as amended
(the "Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, and has been
filed with the Commission. The Company has prepared and has filed or proposes
to file prior to the effective date of such registration statement an amendment
or amendments to such registration statement, which amendment or amendments
have been or will be similarly prepared. There have been delivered to you four
signed copies of such registration statement and amendments, together with four
copies of each exhibit filed therewith. Conformed copies of such registration
statement and amendments (but without exhibits) and of the related preliminary
prospectus have been delivered to you in such reasonable quantities as you have
requested for each of the Underwriters. The Company will next file with the
Commission one of the following: (i) prior to effectiveness of such
registration statement, a further amendment thereto, including the form of
final prospectus, (ii) a final prospectus in accordance with Rules 430A and
424(b) of the Rules and Regulations, or (iii) a term sheet (the "Term Sheet")
as described in and in accordance with Rules 434 and 424(b) of the Rules and
Regulations. As filed, the final prospectus, if one is used, or the Term Sheet
and Preliminary Prospectus, if a final prospectus is not used, shall include
all Rule 430A Information and, except to the extent that you shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the date and time that this Agreement was executed
and delivered by the parties hereto, or, to the extent not completed at such
date and time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus) as
the Company shall have previously advised you in writing would be included or
made therein.
The term "Registration Statement" as used in this Agreement shall
mean such registration statement at the time such registration statement
becomes effective and, in the event any post-effective amendment thereto
becomes effective prior to the First Closing Date (as hereinafter defined),
shall also mean such registration statement
-2-
3
as so amended; provided, however, that such term shall also include (i) all
documents incorporated or deemed to be incorporated by reference therein
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the "Exchange Act"), (ii) all
Rule 430A Information deemed to be included in such registration statement at
the time such registration statement becomes effective as provided by Rule 430A
of the Rules and Regulations, and (iii) a registration statement, if any, filed
pursuant to Rule 462(b) of the Rules and Regulations relating to the Common
Shares. The term "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in the preceding paragraph and any preliminary
prospectus included in the Registration Statement at the time it becomes
effective that omits Rule 430A Information. The term "Prospectus" as used in
this Agreement shall mean either (i) the prospectus relating to the Common
Shares in the form in which it is first filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations or, (ii) if a Term Sheet is not used
and no filing pursuant to Rule 424(b) of the Rules and Regulations is required,
the form of final prospectus included in the Registration Statement at the time
such registration statement becomes effective, or (iii) if a Term Sheet is
used, the Term Sheet in the form in which it is first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, together with the
Preliminary Prospectus included in the Registration Statement at the time it
becomes effective. The term "Rule 430A Information" means information with
respect to the Common Shares and the offering thereof permitted to by omitted
from Registration Statement when it becomes effective pursuant to Rule 430A of
the Rules and Regulations.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
(b) The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus has conformed in all material respects to the requirements of the
Act and the Rules and Regulations and, as of its date, has not included any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and at the time the Registration
Statement becomes effective, and at all times subsequent thereto up to and
including each Closing Date hereinafter mentioned, the Registration Statement
and the Prospectus, and any amendments or supplements thereto, will contain all
material statements and information required to be included therein by the Act
and the Rules and Regulations, and will in all material respects conform to the
requirements of the Act and the Rules and Regulations, and neither the
Registration Statement nor the Prospectus, nor any amendment or
-3-
4
supplement thereto, will include any 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, however, no
representation or warranty contained in this subsection 2(b) shall be
applicable to information contained in or omitted from any Preliminary
Prospectus, the Registration Statement, the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter, directly or
through the Representatives, specifically for use in the preparation thereof.
(c) The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21.1 to the Company's Annual Report on Form 10-K
for the Company's fiscal year ended March 31, 1996. The Company has been duly
incorporated and is validly existing as a public company under the laws of
Singapore. Each of the subsidiaries of the Company has been duly incorporated
and is validly existing in their respective jurisdictions of incorporation or
formation. The Company and each of its subsidiaries has full power and
authority (corporate and other) to own and lease their respective properties
and conduct their respective businesses; the Company owns all of the
outstanding capital stock or joint venture interests of its subsidiaries, free
and clear of all claims, liens, charges and encumbrances; the Company and each
of its subsidiaries are in possession of and operating in compliance with all
authorizations, licenses, permits, consents, certificates and orders material
to the conduct of their respective businesses, all of which are valid and in
full force and effect; the Company and each of its subsidiaries are duly
qualified to do business and in good standing as foreign corporations in each
jurisdiction in which the ownership or leasing of properties or the conduct of
their respective businesses requires such qualification, except for
jurisdictions in which the failure to so qualify would not have a material
adverse effect upon the Company or the subsidiary; and no proceedings has been
instituted in any such jurisdiction, revoking, limiting or curtailing, or
seeking to revoke, limit or curtail, such power and authority or qualification.
(d) The Company has an authorized and issued share
capital as set forth under the heading "Capitalization" in the Prospectus; the
issued and outstanding Ordinary Shares have been duly authorized and validly
issued, are fully paid, have been issued in compliance with all federal and
state securities laws, whether of Singapore, the United States or otherwise,
were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities, and conform to the description
thereof contained in the Prospectus. All issued and outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized and
validly issued and are fully paid and nonassessable. Except as disclosed in
the Prospectus and the financial statements of the Company, and the related
notes thereto, included in the Prospectus, neither the Company nor any
subsidiary has outstanding any options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
obligations. The description of the Company's stock option, stock bonus and
other stock schemes, plans or arrangements, and the options or other rights
granted and exercised thereunder, set
-4-
5
forth in the Prospectus accurately and fairly presents the information required
to be shown with respect to such schemes, plans, arrangements, options and
rights.
(e) The Common Shares to be purchased by the
Underwriters from the Company have been duly authorized and, when issued,
delivered and paid for in the manner set forth in this Agreement, will be duly
authorized, validly issued and fully paid, and will conform to the description
thereof contained in the Prospectus. No preemptive rights or other rights to
subscribe for or purchase exist with respect to the issuance and sale of the
Common Shares by the Company pursuant to this Agreement. No shareholder of the
Company has any right which has not been waived to require the Company to
register the sale of any shares owned by such shareholder under the Act in the
public offering contemplated by this Agreement. No further approval or
authority of the shareholders or the Board of Directors of the Company will be
required for the issuance and sale of the Common Shares to be sold by the
Company as contemplated herein other than the Board of Directors' approval of
the list of purchasers of the Common Shares, which will occur prior to the
First Closing.
(f) The Company has full legal right, power and
authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company in accordance with its terms. The making and performance of this
Agreement by the Company and the consummation of the transactions herein
contemplated will not violate any provisions of the Memorandum and Articles of
Association, Certificate of Incorporation, or other organizational documents,
of the Company or any of its subsidiaries, and will not conflict with, result
in the breach or violation of, or constitute, either by itself or upon notice
or the passage of time or both, a default under any agreement, mortgage, deed
of trust, lease, franchise, license, indenture, permit or other instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of its respective properties may be bound or
affected (except as to conflicts, breaches, violations or defaults of any of
the foregoing that individually or in the aggregate would not be material to
the Company), any statute or any authorization, judgment, decree, order, rule
or regulation of any court or any regulatory body, administrative agency or
other governmental body applicable to the Company or any of its subsidiaries or
any of their respective properties. No consent, approval, authorization or
other order of any court, regulatory body, administrative agency or other
governmental body is required for the execution and delivery of this Agreement
or the consummation of the transactions contemplated by this Agreement, except
for compliance with the Act, the Blue Sky laws applicable to the public
offering of the Common Shares by the several Underwriters and the clearance of
such offering with the National Association of Securities Dealers, Inc. (the
"NASD").
(g) Ernst & Young LLP, who have expressed their opinion
with respect to the consolidated financial statements and schedules filed with
the Commission as a part of the Registration Statement and included in the
Prospectus and in the Registration Statement, are independent accountants as
required by the Act, the Rules and Regulations and the Exchange Act.
-5-
6
(h) The consolidated financial statements and schedules
of the Company and its subsidiaries, and the related notes thereto, included in
the Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of the respective
dates of such financial statements and schedules, and the results of operations
and changes in financial position of the Company and its subsidiaries for the
respective periods covered thereby. Such statements, schedules and related
notes have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis as certified by the independent
accountants named in subsection 2(g). No other financial statements or
schedules are required to be included in the Registration Statement. The
selected financial data set forth in the Prospectus under the captions
"Prospectus Summary--Summary Selected Financial Data," "Capitalization" and
"Selected Financial Data" fairly present the information set forth therein on
the basis stated in the Registration Statement.
(i) Except as disclosed in the Prospectus, and except as
to defaults which individually or in the aggregate would not be material to the
Company, neither the Company nor any of its subsidiaries is in violation or
default of any provision of its memorandum and Articles of Association,
Certificate of Incorporation, or other organizational documents, or is in
breach of or default with respect to any provision of any agreement, judgment,
decree, order, mortgage, deed of trust, lease, franchise, license, indenture,
permit or other instrument to which it is a party or by which it or any of its
properties are bound; and there does not exist any state of facts which
constitutes an event of default on the part of the Company or any such
subsidiary as defined in such documents or which, with notice or lapse of time
or both, would constitute such an event of default.
(j) There are no contracts or other documents required
to be described in the Registration Statement or to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which have
not been described or filed as required. The descriptions of the contracts so
described in the Prospectus are accurate; all such contracts are in full force
and effect on the date hereof; and neither the Company nor any of its
subsidiaries, nor to the best of the Company's knowledge, any other party is in
breach of or default under any of such contracts.
(k) There are no legal or governmental actions, suits or
proceedings pending or, to the best of the Company's knowledge, threatened to
which the Company or any of its subsidiaries is or may be a party or of which
property owned or leased by the Company or any of its subsidiaries is or may be
the subject, or related to environmental or discrimination matters, which
actions, suits or proceedings might, individually or in the aggregate, prevent
or adversely affect the transactions contemplated by this Agreement or result
in a material adverse change in the condition (financial or otherwise),
properties, business, results of operations or, to the best of the Company's
knowledge, prospects of the Company and its subsidiaries; and no labor
disturbance by the employees of the Company or any of its subsidiaries exists
or is imminent which might be expected to affect adversely such condition,
properties, business, results of operations or, to the best of Company's
knowledge, prospects. Neither the Company nor any of its subsidiaries is a
party or subject to the
-6-
7
provisions of any material injunction, judgment, decree or order of any court,
regulatory body, administrative agency or other governmental body.
(l) The Company or the applicable subsidiary has good
and marketable title to all the properties and assets reflected as owned in the
financial statements hereinabove described (or elsewhere in the Prospectus),
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
(i) those, if any, reflected in such financial statements (or elsewhere in the
Prospectus), or (ii) those which are not material in amount and do not
adversely affect the use made and proposed to be made of such property by the
Company and its subsidiaries. The Company or the applicable subsidiary holds
its leased properties under valid and binding leases, with such exceptions as
are not materially significant in relation to the business of the Company.
Except as disclosed in the Prospectus, the Company owns or leases all such
properties as are necessary to its operations as now conducted or as proposed
to be conducted as described in the Registration Statement.
(m) Since the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as described
in or specifically contemplated by the Prospectus: (i) the Company and its
subsidiaries have not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business;
(ii) the Company and its subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
windstorm, accident or other calamity, whether or not covered by insurance;
(iii) the Company has not paid or declared any dividends or other distributions
with respect to its issued share capital and the Company and its subsidiaries
are not in default in the payment of principal or interest on any outstanding
debt obligations; (iv) there has not been any change in the share capital
(other than upon the sale of the Common Shares hereunder and the exercise of
options disclosed in the Prospectus) or indebtedness material to the Company
and its subsidiaries (other than in the ordinary course of business); and (v)
there has not been any material adverse change in the condition (financial or
otherwise), business, properties, results of operations or, to the best of the
Company's knowledge, prospects of the Company and its subsidiaries.
(n) Except as disclosed in or specifically contemplated
by the Prospectus, the Company and its subsidiaries have sufficient trademarks,
trade names, patent rights, mask works, copyrights, licenses, approvals and
governmental authorizations to conduct their businesses as now conducted; the
expiration of any trademarks, trade names, patent rights, mask works,
copyrights, licenses, approvals or governmental authorizations would not have a
material adverse effect on the condition (financial or otherwise), business,
results of operations or, to the best of the Company's knowledge, prospects of
the Company or its subsidiaries; and the Company has no knowledge of any
material infringement by it or its subsidiaries of trademark, trade name
rights, patent rights, mask works, copyrights, licenses, trade secret or other
similar rights of others, and there is no claim being made against the Company
or its subsidiaries regarding trademark, trade name, patent, mask work,
copyright, license, trade secret or other infringement which could have a
material
-7-
8
adverse effect on the condition (financial or otherwise), business, results of
operations or, to the best of the Company's knowledge, prospects of the Company
and its subsidiaries.
(o) The Company has not been advised, and has no reason
to believe, that either it or any of its subsidiaries is not conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, including, without
limitation, all applicable local, state and federal environmental laws and
regulations; except where failure to be so in compliance would not materially
adversely affect the condition (financial or otherwise), business, results of
operations or, to the best of the Company's knowledge, prospects of the Company
and its subsidiaries.
(p) The Company and its subsidiaries have filed all
necessary federal, national, state, provincial, foreign and other income and
franchise tax returns and have paid all taxes shown as due thereon; and the
Company has no knowledge of any tax deficiency which has been or might be
asserted or threatened against the Company or its subsidiaries which could
materially and adversely affect the business, operations or properties of the
Company and its subsidiaries.
(q) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(r) The Company has not distributed and will not
distribute prior to the First Closing Date any offering material in connection
with the offering and sale of the Common Shares other than the Prospectus, the
Registration Statement and the other materials permitted by the Act.
(s) Each of the Company and its subsidiaries maintain
insurance of the types and in the amounts generally deemed adequate for its
business, including, but not limited to, insurance covering real and personal
property owned or leased by the Company and its subsidiaries against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect.
(t) Neither the Company nor any of its subsidiaries has
at any time during the last five years (i) made any unlawful contribution to
any candidate for public office, or failed to disclose fully any contribution
in violation of law, or (ii) made any payment to any governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
(u) The Company has not taken and will not take,
directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of
the Ordinary Shares to facilitate the sale or resale of the Common Shares.
-8-
9
(v) Subject to the approval of the list of purchasers by
the Board of Directors of the Company as referred to in (e) above, no transfer
taxes are required to be paid in connection with the sale and delivery of the
Common Shares to the Underwriters hereunder.
(w) The Ordinary Shares (including the Common Shares)
are registered pursuant to Section 12(g) of the Exchange Act and are listed on
the Nasdaq National Market, and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Ordinary
Shares under the Exchange Act or delisting the Ordinary Shares from the Nasdaq
National Market, nor has the Company received any notification that the
Commission or the NASD is contemplating terminating such registration or
listing.
(x) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read together
with the other information in the Prospectus, at the time the Registration
Statement and any amendments thereto become effective and at the First Closing
Date and the Second Closing Date, as the case may be, will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Any certificate signed by an officer of the Company and delivered
to the Representatives or to counsel for the Underwriters shall be deemed to be
a representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
3. Representations and Warranties of the Underwriters. The
Representatives, on behalf of the several Underwriters, represent and warrant
to the Company that the information set forth (i) on the cover page of the
Prospectus with respect to price, underwriting discounts and commissions and
terms of offering and (ii) under "Underwriting" in the Prospectus was furnished
to the Company by and on behalf of the Underwriters for use in connection with
the preparation of the Registration Statement and the Prospectus and is correct
in all material respects. The Representatives represent and warrant that they
have been authorized by each of the other Underwriters as the Representatives
to enter into this Agreement on its behalf and to act for it in the manner
herein provided.
4. Purchase, Sale and Delivery of Common Shares. On the basis
of the representations, warranties and agreements herein contained, and upon
the terms but subject to the conditions herein set forth, (i) the Company
agrees to issue and sell to the several Underwriters an aggregate of 1,312,500
Firm Common Shares and (ii) the Underwriters agree, severally and not jointly,
to purchase from the Company the respective number of Firm Common Shares set
forth opposite their names on Schedule A. The purchase price per Firm Common
Share to be paid by the several Underwriters to the Company shall be $[_____]
per share.
-9-
10
Delivery of certificates for the Firm Common Shares to be
purchased by the Underwriters and payment therefor shall be made at the offices
of Xxxxxxxxxx Securities, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (or
such other place as may be agreed to by the Company and the Representatives) at
6:00 a.m., on [_____], or such other time and date not later than 10:30 a.m.,
on the later of the fifth full business day following the first date that any
of the Common Shares are released by you for sale to the public or the date
that is 48 hours after the date that the Prospectus has been recirculated, if
applicable (the time and date of such closing are called the "First Closing
Date"). The Company hereby acknowledges that circumstances under which the
Representatives may provide notice to postpone the First Closing Date as
originally scheduled include, but are in no way limited to, any determination
by the Company or the Representatives to recirculate to the public copies of an
amended or supplemented Prospectus or a delay due to the issuance of a stop
order as contemplated by the provisions of Section 9.
In addition, on the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the conditions
herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of
196,875 Optional Common Shares from the Company at the purchase price per share
to be paid by the Underwriters for the Firm Common Shares. The option granted
hereunder is for use by the Underwriters solely in covering any over-allotments
in connection with the sale and distribution of the Firm Common Shares. The
option granted hereunder may be exercised at any time (but not more than once)
upon notice by the Representatives to the Company, which notice may be given at
any time within 30 days from the date of this Agreement. Such notice shall set
forth (i) the aggregate number of Optional Common Shares as to which the
Underwriters are exercising the option, (ii) the names and denominations in
which the certificates for the Optional Common Shares are to be registered and
(iii) the time, date and place at which such certificates will be delivered
(which time and date may be simultaneous with, but not earlier than, the First
Closing Date; and in such case the term "First Closing Date" shall refer to the
time and date of delivery of certificates for the Firm Common Shares and the
Optional Common Shares). Such time and date of delivery, if subsequent to the
First Closing Date, is called the "Second Closing Date" and shall be determined
by the Representatives and shall not be earlier than three nor later than five
full business days after delivery of such notice of exercise. If any Optional
Common Shares are to be purchased, each Underwriter agrees, severally and not
jointly, to purchase the number of Optional Common Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may
determine) that bears the same proportion to the total number of Optional
Common Shares to be purchased as the number of Firm Common Shares set forth on
Schedule A opposite the name of such Underwriter bears to the total number of
Firm Common Shares. The Representatives may cancel the option at any time
prior to its expiration by giving written notice of such cancellation to the
Company.
The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the
Prospectus, the Common Shares as soon after this Agreement has been executed
and the Registration Statement
-10-
11
has been declared effective as the Representatives, in their sole judgment,
have determined is advisable and practicable. The Representatives hereby
further advise the Company that (i) the Underwriters will offer the Common
Shares for sale to the public initially at a price of $[_____] per share and to
certain dealers selected by the Representatives at a price that represents a
concession of not more than $[_____] per share from such initial public
offering price and (ii) any Underwriter may allow, and such dealers may
reallow, a concession of not more than $[_____] per share to any other
Underwriter or to certain other dealers.
Payment for the Common Shares to be sold by the Company shall be
made at the First Closing Date (and, if applicable, at the Second Closing Date)
by wire transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized,
for their own accounts and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the
Firm Common Shares and any Optional Common Shares the Underwriters have agreed
to purchase. Xxxxxxxxxx Securities, individually and not as a Representative
of the Underwriters, may (but shall not be obligated to) make payment for any
Common Shares to be purchased by any Underwriter whose funds shall not have
been received by the Representatives by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters certificates for
the Firm Common Shares to be sold by it at the First Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The Company shall also deliver, or
cause to be delivered, to the Representatives for the accounts of the several
Underwriters, certificates for the Optional Common Shares the Underwriters have
agreed to purchase at the First Closing Date or the Second Closing Date, as the
case may be, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The
certificates for the Common Shares shall be in definitive form and registered
in such names and denominations as the Representatives shall have requested at
least two full business days prior to the First Closing Date (or the Second
Closing Date, as the case may be) and shall be made available for inspection on
the business day preceding the First Closing Date (or the Second Closing Date,
as the case may be) at a location in New York City as the Representatives may
designate. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition of the obligations of the
Underwriters.
Not later than 12:00 Noon San Francisco time on the second
business day following later of the date of this Agreement or the date the
Common Shares are released by the Underwriters for sale to the public, the
Company shall deliver, or cause to be delivered, copies of the Prospectus in
such quantities and at such places as the Representatives shall request.
-11-
12
5. Covenants of the Company. The Company covenants and agrees
that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not effective at the time
and date that this Agreement is executed and delivered by the parties hereto,
to become effective. If the Registration Statement has become or becomes
effective pursuant to Rule 430A of the Rules and Regulations, or the filing of
the Prospectus is otherwise required under Rule 424(b) of the Rules and
Regulations, the Company will file the Prospectus, properly completed, pursuant
to the applicable paragraph of Rule 424(b) of the Rules and Regulations within
the time period prescribed and will provide evidence satisfactory to you of
such timely filing. The Company will promptly advise you in writing (i) of the
receipt of any comments of the Commission, (ii) of any request of the
Commission for amendment of or supplement to the Registration Statement (either
before or after it becomes effective), any Preliminary Prospectus or the
Prospectus or for additional information, (iii) when the Registration Statement
shall have become effective, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose. If the Commission shall enter
any such stop order at any time, the Company will use its best efforts to
obtain the lifting of such order at the earliest possible moment. The Company
will not file any amendment or supplement to the Registration Statement (either
before or after it becomes effective), any Preliminary Prospectus or the
Prospectus (including any amendment or supplement through incorporation by
reference of any report filed under the Exchange Act) of which you have not
been furnished with a copy a reasonable time prior to such filing or to which
you reasonably object or which is not in compliance with the Act and the Rules
and Regulations.
(b) The Company will prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or the Prospectus which in your judgment may be
necessary or advisable to enable the several Underwriters to continue the
distribution of the Common Shares and will use its best efforts to cause the
same to become effective as promptly as possible. The Company will fully and
completely comply with the provisions of Rules 424(b), 430A and 434, as
applicable, of the Rules and Regulations with respect to information omitted
from the Registration Statement in reliance upon such Rule.
(c) If at any time within the nine-month period referred
to in Section 10(a)(3) of the Act during which a prospectus relating to the
Common Shares is required to be delivered under the Act any event occurs, as a
result of which the Prospectus, including any amendments or supplements, would
include an untrue statement of a material fact, or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or if it is necessary at any time to amend the Prospectus,
including any amendments or supplements, to comply with the Act or the Rules
and Regulations, the Company will promptly advise you thereof and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance and
-12-
13
will use its best efforts to cause the same to become effective as soon as
possible; and, in case any Underwriter is required to deliver a prospectus
after such nine-month period, the Company upon request, but at the expense of
such Underwriter, will promptly prepare such amendment or amendments to the
Registration Statement and such Prospectus or Prospectuses as may be necessary
to permit compliance with the requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days
after the end of the first quarter ending after one year following the
"effective date of the Registration Statement" (as defined in Rule 158(c) of
the Rules and Regulations), the Company will make generally available to its
security holders an earning statement (which need not be audited) covering a
period of 12 consecutive months beginning after the effective date of the
Registration Statement which will satisfy the provisions of the last paragraph
of Section 11(a) of the Act.
(e) During such period as a prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, the
Company, at its expense, but only for the nine-month period referred to in
Section 10(a)(3) of the Act, will furnish to you or mail to your order copies
of the Registration Statement, the Prospectus, the Preliminary Prospectus and
all amendments and supplements to any such documents (including any documents
incorporated or deemed incorporated by reference therein) in each case as soon
as available and in such quantities as you may request, for the purposes
contemplated by the Act.
(f) The Company shall cooperate with you and your
counsel in order to qualify or register the Common Shares for sale under (or
obtain exemptions from the application of) the Blue Sky laws of such
jurisdictions as you designate (including those of Canada) and under the
applicable securities laws of such other nations as you may designate, will
comply with such laws and will continue such qualifications, registrations and
exemptions in effect so long as reasonably required for the distribution of the
Common Shares. The Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
jurisdiction where it is not presently qualified. The Company will advise you
promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Common Shares for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company, with your cooperation,
will use its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the
Company will furnish to the Representatives and, upon request of the
Representatives, to each of the other Underwriters: (i) as soon as practicable
after the end of each fiscal year, copies of the Annual Report of the Company
containing the balance sheet of the Company as of the close of such fiscal year
and statements of income, shareholders' equity and cash flows for the year then
ended and the opinion thereon of the Company's independent public accountants;
(ii) as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly
-13-
14
Report on Form 10-Q, Report on Form 8-K or other report filed by the Company
with the Commission, the NASD or any securities exchange; and (iii) as soon as
available, copies of any report or communication of the Company mailed
generally to holders of its Ordinary Shares.
(h) During the period of 90 days after the first date
that any of the Common Shares are released by you for sale to the public,
without the prior written consent of either Xxxxxxxxxx Securities or each of
the Representatives (which consent may be withheld at the sole discretion of
Xxxxxxxxxx Securities or the Representatives, as the case may be), the Company
will not issue, offer, sell, grant options to purchase or otherwise dispose of
any of the Company's equity securities or any other securities convertible into
or exchangeable with its Ordinary Shares or other equity security, other than
pursuant to outstanding stock options and warrants disclosed in the Prospectus
and other than the grant of options or the issuance of the Company's equity
securities pursuant to the Company's employee share option plans described in
the Prospectus or the issuance of Ordinary Shares in connection with
acquisitions.
(i) The Company will apply the net proceeds of the sale
of the Common Shares sold by it substantially in accordance with its statements
under the caption "Use of Proceeds" in the Prospectus.
(j) During such period as a prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, the
Company will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act.
The Representatives, on behalf of the Underwriters, may, in their
sole discretion, waive in writing the performance by the Company of any one or
more of the foregoing covenants set forth in Section 5 herein or extend the
time for their performance.
6. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective or
is terminated, the Company agrees to pay all costs, fees and expenses incurred
in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including without
limiting the generality of the foregoing (i) all expenses incident to the
issuance and delivery of the Common Shares (including all printing and
engraving costs), (ii) all fees and expenses of the registrar and transfer
agent of the Ordinary Shares, (iii) all necessary issue, transfer and other
stamp taxes in connection with the issuance and sale of the Common Shares to
the Underwriters, (iv) all fees and expenses of the Company's counsel and the
Company's independent accountants, including fees of counsel or independent
accountants with respect to any subsidiary of the Company, (v) all costs and
expenses incurred in connection with the printing, filing, shipping and
distribution of the Registration Statement, each Preliminary Prospectus and the
Prospectus (including all exhibits and financial statements) and all amendments
and supplements provided for herein, this Agreement, the Agreement Among
Underwriters, the Selected Dealers Agreement, the Underwriters' Questionnaire,
the Underwriters' Power of Attorney and the Blue Sky memorandum, (vi) all
filing fees, attorneys' fees and expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the
-14-
15
Common Shares for offer and sale under the Blue Sky laws (including those of
Canada) and under the applicable securities laws of such other nations as you
may designate, (vii) the filing fee incident to the review and approval of the
Underwriters' participation in the offering and distribution of the Common
Shares by the NASD, and (viii) all other fees, costs and expenses referred to
in Item 13 of the Registration Statement. Except as provided in this Section
6, Section 8 and Section 10 hereof, the Underwriters shall pay all of their own
expenses, including the fees and disbursements of their counsel (excluding
those relating to qualification, registration or exemption under the Blue Sky
laws (including those of Canada) and under the applicable securities laws of
such other nations as you may designate, and the Blue Sky memorandum referred
to above).
7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Ordinary Shares on the First Closing Date and the Optional Ordinary Shares on
the Second Closing Date shall be subject to the accuracy of the representations
and warranties on the part of the Company herein set forth as of the date
hereof and as of the First Closing Date or the Second Closing Date, as the case
may be, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 5:00 p.m., Washington, D.C. time, on the date of this
Agreement, or at such later time as shall have been consented to by you; if the
filing of the Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b) of the Rules and Regulations, the Prospectus shall have been filed
in the manner and within the time period required by Rule 424(b) of the Rules
and Regulations; and prior to such Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be pending or,
to the knowledge of the Company or you, shall be contemplated by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement, or otherwise, shall have been
complied with to your satisfaction.
(b) You shall be satisfied that since the respective
dates as of which information is given in the Registration Statement and
Prospectus, (i) there shall not have been any change in the authorized or
issued share capital of the Company or any of its subsidiaries other than
pursuant to the exercise of outstanding options disclosed in the Prospectus or
any material change in the indebtedness (other than in the ordinary course of
business) of the Company or any of its subsidiaries, (ii) except as set forth
or contemplated by the Registration Statement or the Prospectus, no material
verbal or written agreement or other transaction shall have been entered into
by the Company or any of its subsidiaries, which is not in the ordinary course
of business or which could result in a material reduction in the future
earnings of the Company and its subsidiaries, (iii) no loss or damage (whether
or not insured) to the property of the Company or any of its subsidiaries shall
have been sustained which materially and adversely affects the condition
(financial or otherwise), business, results of operations or prospects of the
Company and its subsidiaries, (iv) no legal or
-15-
16
governmental action, suit or proceeding affecting the Company or any of its
subsidiaries which is material to the Company and its subsidiaries or which
affects or may affect the transactions contemplated by this Agreement shall
have been instituted or threatened, and (v) there shall not have been any
material change in the condition (financial or otherwise), business,
management, results of operations or prospects of the Company and its
subsidiaries which makes it impractical or inadvisable in the judgment of the
Representatives to proceed with the public offering or purchase the Common
Shares as contemplated hereby.
(c) There shall have been furnished to you, as
Representatives of the Underwriters, on each Closing Date, in form and
substance satisfactory to you, except as otherwise expressly provided below:
(i) (A) An opinion of Xxxxx & Xxxxxxxx,
counsel for the Company, addressed to the Underwriters and dated the First
Closing Date, or the Second Closing Date, as the case may be, to the effect
that:
(1) Each of the Company and its
Singapore subsidiary has been duly incorporated and is validly existing as a
corporation (public corporation in the case of the Company) under the laws of
its jurisdiction of incorporation, and has full corporate power and authority
to own its properties and conduct its business as described in the Registration
Statement;
(2) As of the respective Closing
Date, the authorized issued and outstanding capital stock of the Company is as
set forth under the caption "Capitalization" in the Prospectus as the same
refers to "Actual" authorized, issued and outstanding shares; all necessary and
proper corporate proceedings have been taken in order to authorize validly such
authorized Ordinary Shares; all outstanding Ordinary Shares have been duly and
validly issued, are fully paid and nonassessable, and were not issued in
violation of or subject to any preemptive rights or other rights to subscribe
for or purchase any securities contained in the Memorandum and Articles of
Association of the Company or Singapore law or any material agreement to which
the Company or any subsidiary is a party; the outstanding Ordinary Shares were
issued in compliance with all laws of Singapore, that impose any restrictions
or requirements on, or otherwise regulate, the sale of securities; and the
Ordinary Shares conform to the description thereof contained in the Prospectus;
(3) All of the issued and
outstanding shares of the Company's Singapore subsidiary have been duly and
validly authorized and issued and are fully paid; to such counsel's knowledge
all shares of the Company's subsidiaries are owned beneficially by the Company
free and clear of all liens, encumbrances, equities, claims, security
interests, voting trusts or other defects of title whatsoever, except as
described in the Registration Statement;
(4) The certificates evidencing the
Common Shares to be delivered by the Company hereunder are in due and proper
form under Singapore law, and when the Company's seal thereon has been affixed
in accordance
-16-
17
with the Company's Articles of Association, and delivered to you or upon your
order against payment of the agreed consideration therefor in accordance with
the provisions of this Agreement, the Ordinary Shares represented thereby will
be duly authorized and validly issued and fully paid, will not have been issued
in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities and will conform in all respects to the
description thereof contained in the Prospectus;
(5) Except as disclosed in or
specifically contemplated by the Prospectus, to such counsel's knowledge, there
are no outstanding options, warrants or other rights calling for the issuance
of, and no commitments, plans or arrangements to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable for
capital stock of the Company;
(6) To the best of such counsel's
knowledge, there are no legal or governmental actions, suits or proceedings
pending against the Company which are required to be described in the
Prospectus which are not described as required;
(7) The Company has full right,
power and authority under Singapore law to enter into this Agreement and to
sell and deliver the Ordinary Shares to be sold by it to the several
Underwriters; this Agreement has been duly and validly authorized by all
necessary corporate action by the Company, has been duly and validly executed
and delivered by and on behalf of the Company, and is a valid and binding
agreement of the Company in accordance with its terms, except as enforceability
may be limited by general equitable principles, bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and except as to those provisions relating to indemnity or contribution for
liabilities arising under the Act as to which no opinion need be expressed; and
no approval, authorization, order, consent, registration, filing,
qualification, license or permit of or with any court, regulatory,
administrative or other governmental body in Singapore is required for the
execution and delivery of this Agreement by the Company or the consummation of
the transactions contemplated by this Agreement;
(8) The execution and performance of
this Agreement and the consummation of the transactions herein contemplated
will not violate any of the provisions of the Memorandum and Articles of
Association of the Company or its Singapore subsidiary or, so far as is known
to such counsel, violate any decree, statute or rule of Singapore or any
material agreement to which the Company or its Singapore subsidiary is a party;
(9) To such counsel's knowledge,
neither the Company nor its Singapore subsidiary is in violation of its
Memorandum and Articles of Association, or other organizational documents, or
in breach of or default with respect to any provision of any agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument known to such counsel to which the Company or any such subsidiary is
a party or by which it or any of its properties may
-17-
18
be bound or affected, except where such default would not materially adversely
affect the Company and its subsidiaries; and, to such counsel's knowledge, the
Company and its Singapore subsidiary are in compliance with all decrees,
statutes or governmental rule of Singapore, to which they are subject, except
where noncompliance would not materially adversely affect the Company and its
subsidiaries;
(10) The statements made in the
Prospectus under "Enforcement of Civil Liabilities," "Description of Capital
Shares" and "Taxation," to the extent they constitute summaries of the laws of
Singapore, are accurate, complete and fair summaries;
(11) The choice of California law as
the law governing this Agreement is valid and binding under the laws of
Singapore, except to the extent that any term of this Agreement or provision of
California law applicable to this Agreement is incompatible with the public
policy of Singapore; the consent to jurisdiction as provided in Section 19 of
this Agreement is valid and binding upon the Company under the laws of
Singapore.
(12) No stamp or other issuance or
transaction taxes or duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to the government of
Singapore or any subdivision or taxing authority thereof or therein in
connection with (a) the sale and delivery by the Company of the Common Shares
to or for the accounts of the Underwriters and (b) the sale and delivery of the
Common Shares inside or outside of Singapore by the Underwriters to the
purchasers thereof (excluding any Singapore income tax on the income of any
Underwriter whose net income is subject to tax by the government of Singapore).
In rendering such opinion, such counsel may state that with
respect to all matters of the laws of the United States, they are relying on
the opinion of Fenwick & West LLP, provided that such counsel states they
believe that both you and they are justified in relying on such opinion.
(B) An opinion of Fenwick & West LLP,
special counsel to the Company, addressed to the Underwriters and dated the
First Closing Date or the Second Closing Date, as the case may be, to the
effect that:
(1) Flextronics International (USA),
Inc. (the "U.S. Sub") has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the jurisdiction of its
incorporation; the Company and each of its subsidiaries is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction, if
any, in the United States in which the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries; and the U.S. Sub
has full corporate power and authority to own its properties and conduct its
business as currently conducted;
-18-
19
(2) To such counsel's knowledge, the
issued and outstanding Ordinary Shares issued after August 2, 1995 were issued
in compliance with United States federal and California securities laws;
(3) All of the issued and
outstanding shares of the U.S. Sub have been duly and validly authorized and
issued and are fully paid and nonassessable and to such counsel's knowledge are
owned beneficially by the Company free and clear of all liens, encumbrances,
equities, claims, security interests, voting trusts or other defects of title
whatsoever;
(4) Except as disclosed in or
specifically contemplated by the Prospectus, to such counsel's knowledge, there
are no outstanding options, warrants or other rights calling for the issuance
of, and no commitments, plans or arrangements to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable for
capital stock of the Company;
(5) a. The Registration Statement
has become effective under the Act, and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or preventing
the use of the Prospectus has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated by the Commission; any
required filing of the Prospectus and any supplement thereto pursuant to Rule
424(b) of the Rules and Regulations has been made in the manner and within the
time period required by such Rule 424(b);
b. The Registration Statement, the
Prospectus (including any document incorporated by reference therein) and each
amendment or supplement thereto (except for the financial statements and
schedules included therein as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the Act,
the Rules and Regulations and the Exchange Act;
c. To such counsel's knowledge,
there are no franchises, leases, contracts, agreements or documents of a
character required to be disclosed in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement which are not
disclosed or filed or incorporated by reference, as required;
d. To such counsel's knowledge,
there are no legal or governmental actions, suits or proceedings pending or
threatened against the Company which are required to be described in the
Prospectus which are not described as required;
(6) The Company has full right,
power and authority to enter into this Agreement and to sell and deliver the
Ordinary Shares to be sold by it to the several Underwriters; this Agreement
has been duly and validly authorized by all necessary corporate action by the
Company, has been duly and validly executed and delivered by and on behalf of
the Company, and is a valid and
-19-
20
binding agreement of the Company in accordance with its terms, except as
enforceability may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and except as to those provisions relating to indemnity or
contribution for liabilities arising under the Act as to which no opinion need
be expressed; and no approval, authorization, order, consent, registration,
filing, qualification, license or permit of or with any court, regulatory,
administrative or other governmental body is required under United States
federal or California law for the execution and delivery of this Agreement by
the Company or the consummation of the transactions contemplated by this
Agreement, except such as have been obtained and are in full force and effect
under the Act and such as may be required under applicable Blue Sky laws in
connection with the purchase and distribution of the Common Shares by the
Underwriters and the clearance of such offering with the NASD;
(7) The execution and performance of
this Agreement and the consummation of the transactions herein contemplated
will not conflict with, result in the breach of, or constitute, either by
itself or upon notice or the passage of time or both, a default under, any
agreement, mortgage, deed of trust, lease, franchise, license, indenture,
permit or other instrument listed on an appendix to such opinion, and
reasonably acceptable to counsel to the Underwriters, to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of its or their property may be bound or affected which is
material to the Company and its subsidiaries, or violate any of the provisions
of the Memorandum and Articles of Association, or other organizational
documents, of the Company or the U.S. Sub or, so far as is known to such
counsel, violate any statute, judgment, decree, order, rule or regulation of
any court or governmental body having jurisdiction over the Company or the U.S.
Sub or any of their respective property;
(8) No U.S. Sub is in violation of
its Articles or Certificate of Incorporation, as the case may be;
(9) Each document filed pursuant to
the Exchange Act (other than the financial statements and supporting schedules
included therein, as to which no opinion need be rendered) and incorporated or
deemed to be incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the Exchange Act.
In rendering such opinion, such counsel may state that with
respect to all matters of the laws of Singapore or pertaining to the Memorandum
or Articles of Association of the Company, they are relying solely on the
opinion of Xxxxx & Xxxxxxxx.
Fenwick & West LLP shall also include a statement to the effect
that nothing has come to such counsel's attention that would lead such counsel
to believe that, either at the effective date of the Registration Statement or
at the applicable Closing Date, the Registration Statement or the Prospectus,
or any amendment or supplement thereto, contains any untrue statement of a
material fact or omits to state
-20-
21
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
Fenwick & West LLP shall also provide a separate opinion, dated
the First Closing Date or the Second Closing Date, as the case may be, to the
effect that the statements in the Prospectus under "Taxation," to the extent
they constitute summaries of tax laws of the United States, are accurate,
complete and fair summaries as of the applicable Closing Date.
(C) Opinions of counsel in Hong Kong,
Malaysia and the People's Republic of China regarding certain matters relating
to the subsidiaries incorporated in, or the laws of, such countries that would
constitute significant subsidiaries as referred to in Regulation S-X of the
Rules and Regulations, in form reasonably acceptable to counsel for the
Underwriters.
(D) In rendering the foregoing opinions,
such counsel may rely as to matters of fact on certificates of officers of the
Company and of governmental officials.
(ii) Such opinion or opinions of Howard, Rice,
Nemerovski, Canady, Xxxx & Xxxxxx, a Professional Corporation, and Xxxxx Xxxxxx
& Xxxxxxxxxxx, counsel for the Underwriters, dated the First Closing Date or
the Second Closing Date, as the case may be, with respect to the incorporation
of the Company, the sufficiency of all corporate proceedings and other legal
matters relating to this Agreement, the validity of the Common Shares, the
Registration Statement and the Prospectus and other related matters as you may
reasonably require, and the Company shall have furnished to such counsel such
documents and shall have exhibited to them such papers and records as they may
reasonably request for the purpose of enabling them to pass upon such matters.
In connection with such opinions, such counsel may rely on representations or
certificates of officers of the Company and governmental officials.
(iii) A certificate of the Company executed by the
Chairman of the Board, the President and the Chief Financial Officer of the
Company, dated the First Closing Date or the Second Closing Date, as the case
may be, to the effect that:
(1) The representations and warranties of
the Company set forth in Section 2 of this Agreement are true and correct as of
the date of this Agreement and as of the First Closing Date or the Second
Closing Date, as the case may be, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied on or prior to such Closing Date;
(2) The Commission has not issued any
order preventing or suspending the use of the Prospectus or any Preliminary
Prospectus filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the Registration
Statement has been issued; and to the best of the knowledge of the respective
signers, no proceedings for that purpose have been instituted or are pending
under the Act;
-21-
22
(3) Each of the respective signers of the
certificate has carefully examined the Registration Statement and the
Prospectus; to the best of his knowledge, the Registration Statement and the
Prospectus and any amendments or supplements thereto contain all statements
required to be stated therein regarding the Company and its subsidiaries; and
neither the Registration Statement nor the Prospectus nor any amendment or
supplement thereto includes any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(4) Since the initial date on which the
Registration Statement was filed, no agreement, written or oral, transaction or
event has occurred which should have been set forth in an amendment to the
Registration Statement or in a supplement to or amendment of any prospectus
which has not been disclosed in such a supplement or amendment:
(5) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, and
except as disclosed in or contemplated by the Prospectus, there has not been
any material adverse change or a development involving a material adverse
change in the condition (financial or otherwise), business, properties, results
of operations, management or, to the best knowledge of the respective signing
officers, prospects of the Company and its subsidiaries; and no legal or
governmental action, suit or proceeding is pending or threatened against the
Company or any of its subsidiaries which is material to the Company and its
subsidiaries, whether or not arising from transactions in the ordinary course
of business, or which may adversely affect the transactions contemplated by
this Agreement; since such dates and except as so disclosed, neither the
Company nor any of its subsidiaries has entered into any verbal or written
agreement or other transaction not in the ordinary course of business or which
could result in a material reduction in the future earnings of the Company or
incurred any material liability or obligation, direct, contingent or indirect,
made any change in its capital stock, made any material change in its
short-term debt or funded debt or repurchased or otherwise acquired any of the
Company's capital stock; and the Company has not declared or paid any dividend,
or made any other distribution, upon its outstanding capital stock payable to
shareholders of record on a date prior to the First Closing Date or Second
Closing Date; and
(6) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus and
except as disclosed in or contemplated by the Prospectus, the Company and its
subsidiaries have not sustained a material loss or damage by strike, fire,
flood, windstorm, accident or other calamity (whether or not insured).
(iv) On the date before this Agreement is executed
and also on the First Closing Date and the Second Closing Date a letter
addressed to you, as Representatives of the Underwriters, from Ernst & Young
LLP, independent accountants, the first one to be dated the day before the date
of this Agreement, the second one to be dated the First Closing Date and the
third one (in the event of a
-22-
23
Second Closing) to be dated the Second Closing Date, in form and substance
satisfactory to the Representatives.
(v) Contemporaneously with the purchase by the
Underwriters of the Firm Common Shares under this Agreement, the International
Managers shall have purchased the Firm International Common Shares under the
International Underwriting Agreement.
(vi) On or before the First Closing Date, letters
from each officer and director and certain other employees of the Company, in
form and substance satisfactory to you, confirming that for a period of 90 days
after the first date that any of the Common Shares are released by you for sale
to the public, such person will not directly or indirectly sell or offer to
sell or otherwise dispose of any Ordinary Shares or any right to acquire such
shares without the prior written consent of either Xxxxxxxxxx Securities or
each of the Representatives, which consent may be withheld at the sole
discretion of Xxxxxxxxxx Securities or each of the Representatives, as the case
may be, subject to exceptions allowing the immediate sale of an aggregate of
approximately 100,000 Ordinary Shares by certain of said individuals.
All such opinions, certificates, letters and documents shall be
in compliance with the provisions hereof only if they are satisfactory to you
and to Howard, Rice, Nemerovski, Canady, Xxxx & Xxxxxx, a Professional
Corporation, counsel for the Underwriters. The Company shall furnish you with
such manually signed or conformed copies of such opinions, certificates,
letters and documents as you request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon notification by you as
Representatives to the Company without liability on the part of any Underwriter
or the Company except for the expenses to be paid or reimbursed by the Company
pursuant to Sections 6 and 8 hereof and except to the extent provided in
Section 10 hereof.
8. Reimbursement of Underwriters' Expenses. Notwithstanding
any other provisions hereof, if this Agreement shall be terminated by you
pursuant to Sections 7 or 13, or if the sale to the Underwriters of the Common
Shares at the First Closing is not consummated because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or to comply with any provision hereof, the Company agrees to reimburse you and
the other Underwriters upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by you and them in connection with the proposed
purchase and the sale of the Common Shares, including but not limited to fees
and disbursements of counsel, printing expenses, travel expenses, postage,
telegraph charges and telephone charges relating directly to the offering
contemplated by the Prospectus. Any such termination shall be without
liability of any party to any other party except that the provisions of this
Section, Section 6 and Section 10 shall at all times be effective and shall
apply.
-23-
24
9. Effectiveness of Registration Statement. The parties will
use their best efforts to cause the Registration Statement to become effective,
to prevent the issuance of any stop order suspending the effectiveness of the
Registration Statement and, if such stop order be issued, to obtain as soon as
possible the lifting thereof.
10. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act against any losses, claims, damages, liabilities or
expenses, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state in any of
them a material fact required to be stated therein or necessary to make the
statements in any of them not misleading, or arise out of or are based in whole
or in part on any inaccuracy in the representations and warranties of the
Company contained herein or any failure of the Company to perform its
obligations hereunder or under law; and will reimburse each Underwriter and
each such controlling person for any legal and other expenses as such expenses
are reasonably incurred by such Underwriter or such controlling person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto in reliance upon and in conformity with
the information furnished to the Company pursuant to Section 3 hereof; and
provided further, that the indemnity provided in this Section 10(a) with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any loss, claim, charge, liability
or litigation based upon any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state therein a material fact
purchased Ordinary Shares, if a copy of the Prospectus in which such untrue
statement or alleged untrue statement or omission or alleged omission was
corrected was not sent or given to such person within the time required by the
Act and the Rules and Regulations thereunder. In addition to its other
obligations under this Section 10(a), the Company agrees that, as an interim
measure during the pendency of any claim, action, investigation, inquiry or
other proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, or any inaccuracy in the representations and
warranties of the Company herein or failure to perform its obligations
hereunder, all as described in this Section 10(a), it will reimburse each
Underwriter on a quarterly basis for all reasonable legal or other expenses
incurred in connection with investigating or
-24-
25
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of its obligation to reimburse each Underwriter for such
expenses and the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. To the extent that any
such interim reimbursement payment is so held to have been improper, each
Underwriter shall promptly return it together with interest, compounded daily,
determined on the basis of the prime rate (or other commercial lending rate for
borrowers of the highest credit standing) announced from time to time by Bank
of America NT&SA, San Francisco, California (the "Prime Rate"). Any such
interim reimbursement payments which are not made to an Underwriter within 30
days of a request for reimbursement, shall bear interest at the Prime Rate from
the date of such request. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter will severally indemnify and hold
harmless the Company, each of its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages, liabilities
or expenses to which the Company, or any such director, officer or controlling
person may become subject, under the Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter), insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated below)
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with the information furnished to the Company pursuant to Section 3
hereof; and will reimburse the Company, or any such director, officer or
controlling person for any legal and other expense reasonably incurred by the
Company, or any such director, officer or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. In addition to its other
obligations under this Section 10(b), each Underwriter severally agrees that,
as an interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in this Section 10(b)
which relates to information furnished to the Company pursuant to Section 3
hereof, it will reimburse the Company (and, to the extent applicable, each
officer, director or controlling person) on a quarterly basis for all
reasonable legal or other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Underwriters' obligation to reimburse the Company (and,
to the extent applicable, each officer, director or
-25-
26
controlling person) for such expenses and the possibility that such payments
might later be held to have been improper by a court of competent jurisdiction.
To the extent that any such interim reimbursement payment is so held to have
been improper, the Company (and, to the extent applicable, each officer,
director or controlling person) shall promptly return it to the Underwriters
together with interest, compounded daily, determined on the basis of the Prime
Rate. Any such interim reimbursement payments which are not made to the
Company within 30 days of a request for reimbursement, shall hear interest at
the Prime Rate from the date of such request. This indemnity agreement will be
in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
for contribution or otherwise than under the indemnity agreement contained in
this Section or to the extent it is not prejudiced as a proximate result of
such failure. In case any such action is brought against any indemnified party
and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, jointly with all other indemnifying
parties similarly notified, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be a conflict between the positions of the indemnifying party
and the indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph (a),
representing the indemnified parties who are parties to such action) or (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, in each of which cases the
fees and expenses of counsel shall be at the expense of the indemnifying party.
-26-
27
(d) If the indemnification provided for in this Section
10 is required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of any losses, claims, damages, liabilities or expenses referred to herein (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, from
the offering of the Common 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, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
or inaccuracies in the representations and warranties herein which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The respective relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, shall
be deemed to be in the same proportion, in the case of the Company, as the
total price paid to the Company for the Common Shares sold by it to the
Underwriters (net of underwriting commissions but before deducting expenses)
bears to the total price to the public set forth on the cover of the
Prospectus, and in the case of the Underwriters as the underwriting commissions
received by them bears to the total of such amounts paid to the Company and
received by the Underwriters as underwriting commissions. The relative fault
of the Company, on the one hand, and the Underwriters, on the other hand, shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the Company,
on the one hand, or the Underwriters, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
subparagraph (c) of this Section 10, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in subparagraph (c) of this
Section 10 with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this subparagraph (d); provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under subparagraph (c) for purposes of
indemnification. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 10 were determined
solely by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 10, no
Underwriter shall be required to contribute any amount in excess of the amount
of the total underwriting commissions received by such Underwriter in
connection with the Common Shares underwritten by it and distributed to the
public. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act)
-27-
28
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 10 are several in proportion to their respective
underwriting commitments and not joint.
(e) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in Sections 10(a)
and 10(b) hereof, including the amounts of any requested reimbursement payments
and the method of determining such amounts, shall be settled by arbitration
conducted under the provisions of the Constitution and Rules of the Board of
Governors of the New York Stock Exchange, Inc. or pursuant to the Code of
Arbitration Procedure of the NASD. Any such arbitration must be commenced by
service of a written demand for arbitration or written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in Sections 10(a) and 10(b)
hereof and would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of such
Sections 10(a) and 10(b) hereof.
11. Default of Underwriters. It shall be a condition to this
Agreement and the obligation of the Company to sell and deliver the Common
Shares hereunder, and of each Underwriter to purchase the Common Shares in the
manner as described herein, that, except as hereinafter in this paragraph
provided, each of the Underwriters shall purchase and pay for all the Common
Shares agreed to be purchased by such Underwriter hereunder upon tender to the
Representatives of all such shares in accordance with the terms hereof. If any
Underwriter or Underwriters default in their obligations to purchase Common
Shares hereunder on either the First or Second Closing Date and the aggregate
number of Common Shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase on such Closing Date does not exceed 10% of the
total number of Common Shares which the Underwriters are obligated to purchase
on such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Common Shares which such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default
and the aggregate number of Common Shares with respect to which such default
occurs is more than the above percentage and arrangements satisfactory to the
Representatives and the Company for the purchase of such Common Shares by other
persons are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or
the Company except for the expenses to be paid by the Company pursuant to
Sections 6 and 8 hereof and except to the extent provided in Section 10 hereof.
In the event that Common Shares to which a default relates are to
be purchased by the non-defaulting Underwriters or by another party or parties,
the Representatives or the Company shall have the right to postpone the First
or Second
-28-
29
Closing Date, as the case may be, for not more than five business days in order
that the necessary changes in the Registration Statement, Prospectus and any
other documents, as well as any other arrangements, may be effected. As used
in this Agreement, the term "Underwriter" includes any person substituted for
an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
12. Effective Date. This Agreement shall become effective
immediately as to Sections 6, 8, 10, 13 and 15 and, as to all other provisions,
(i) if at the time of execution of this Agreement the Registration Statement
has not become effective, at 2:00 p.m., California time, on the first full
business day following the effectiveness of the Registration Statement, or (ii)
if at the time of execution of this Agreement the Registration Statement has
been declared effective, at 2:00 p.m., California time, on the first full
business day following the date of execution of this Agreement; but this
Agreement shall nevertheless become effective at such earlier time after the
Registration Statement becomes effective as you may determine on and by notice
to the Company or by release of any of the Common Shares for sale to the
public. For the purposes of this Section 12, the Common Shares shall be deemed
to have been so released upon the release for publication of any newspaper
advertisement relating to the Common Shares or upon the release by you of
telegrams (i) advising Underwriters that the Common Shares are released for
public offerings or (ii) offering the Common Shares for sale to securities
dealers, whichever may occur first.
13. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by
notice to you or by you by notice to the Company at any time prior to the time
this Agreement shall become effective as to all its provisions, and any such
termination shall be without liability on the part of the Company to any
Underwriter (except for the expenses to be paid or reimbursed by the Company
pursuant to Sections 6 and 8 hereof and except to the extent provided in
Section 10 hereof) or of any Underwriter to the Company (except to the extent
provided in Section 10 hereof).
(b) This Agreement may also be terminated by you prior
to the First Closing Date by notice to the Company (i) if additional material
governmental restrictions, not in force and effect on the date hereof, shall
have been imposed upon trading in securities generally or minimum or maximum
prices shall have been generally established on the New York Stock Exchange or
on the American Stock Exchange or in the over the counter market by the NASD,
or trading in securities generally shall have been suspended on either such
Exchange or in the over the counter market by the NASD, or a general banking
moratorium shall have been established by federal, New York or California
authorities, (ii) if an outbreak of major hostilities or other national or
international calamity or any substantial change in political, financial or
economic conditions shall have occurred or shall have accelerated or escalated
to such an extent, as, in the judgment of the Representatives, to affect
adversely the marketability of the Common Shares, (iii) if any adverse event
shall have occurred or shall exist which makes untrue or incorrect in any
material respect
-29-
30
any statement or information contained in the Registration Statement or
Prospectus or which is not reflected in the Registration Statement or
Prospectus but should be reflected therein in order to make the statements or
information contained therein not misleading in any material respect, or (iv)
if there shall be any action, suit or proceeding pending or threatened, or
there shall have been any development or prospective development involving
particularly the business or properties or securities of the Company or any of
its subsidiaries or the transactions contemplated by this Agreement, which, in
the reasonable judgment of the Representatives, may materially and adversely
affect the Company's business or earnings and makes it impracticable or
inadvisable to offer or sell the Common Shares. Any termination pursuant to
this subsection (b) shall be without liability on the part of any Underwriter
to the Company or on the part of the Company to any Underwriter (except for
expenses to be paid or reimbursed by the Company pursuant to Sections 6 and 8
hereof and except to the extent provided in Section 10 hereof).
(c) This Agreement shall also terminate at 5:00 p.m.,
California time, on the tenth full business day after the Registration
Statement shall have become effective if the initial public offering price of
the Common Shares shall not then as yet have been determined. Any termination
pursuant to this subsection (c) shall be without liability on the part of any
Underwriter to the Company or on the part of the Company to any Underwriter
(except for expenses to be paid or reimbursed by the Company pursuant to
Sections 6 and 8 hereof and except to the extent provided in Section 10
hereof).
14. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and
payment for the Common Shares sold hereunder and any termination of this
Agreement.
15. Notices. All communications hereunder shall be in writing
and, if sent to the Representatives shall be mailed, delivered or telegraphed
and confirmed to you at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx, with a copy to Howard, Rice, Nemerovski, Canady,
Xxxx & Xxxxxx, Three Xxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxxxxxx, XX
00000, Attention: Xxxxxx X. Xxxxxxx; and if sent to the Company shall be
mailed, delivered or telegraphed and confirmed to the Company at 000 Xxxx Xxxx
Xxxx, #00-00, Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx 1646, Attention: President and
Chief Operating Officer and 0000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Chief Executive Officer, with a copy to Fenwick & West LLP, Xxx Xxxx Xxxx
Xxxxxx, Xxxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxxxxx. Any of the parties
hereto may change the address for receipt of communications hereunder by giving
notice to the others.
16. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, including any substitute Underwriters
pursuant to
-30-
31
Section 11 hereof, and to the benefit of the officers and directors and
controlling persons referred to in Section 10, and in each case their
respective successors, personal representatives and assigns, and no other
person will have any right or obligation hereunder. No such assignment shall
relieve any party of its obligations hereunder. The term "successors" shall
not include any purchaser of the Common Shares as such from any of the
Underwriters merely by reason of such purchase.
17. Representation of Underwriters. You will act as
Representatives for the several Underwriters in connection with all dealings
hereunder, and any action under or in respect of this Agreement taken by you
jointly or by Xxxxxxxxxx Securities, as Representatives, will be binding upon
all the Underwriters.
18. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
19. Applicable Law.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws (and not the laws pertaining to conflicts of
laws) of the State of California.
(b) The Company, by the execution and delivery of this
Agreement, agrees that, until the fifth anniversary date of the First Closing
Date, service of process may be made upon it at 0000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000 (or any successor pursuant to the last sentence of this paragraph) in San
Jose, California in any suit or proceeding against the Company instituted by
any Underwriter or by any person controlling any Underwriter based on or
arising under this Agreement in any United States federal or state court in the
State of California, City and County of San Francisco, and expressly accepts
and submits to the nonexclusive jurisdiction of any such court in respect of
any such suit or proceeding. The Company, by the execution and delivery of
this Agreement, irrevocably designates and appoints until the fifth anniversary
date of the First Closing Date (or until a successor is appointed pursuant to
the last sentence of this paragraph) Xxxxxxx Xxxxx and all other persons who
are the Chief Executive Officer, the President, the Secretary or a Vice
President of the Company during the five year period following the First
Closing Date as the authorized agents of the Company upon whom process may be
served in any suit or proceeding, it being understood that the designation and
appointment of Xx. Xxxxx and other persons presently serving as such officers
as such authorized agent shall become effective immediately without any further
action on the part of the Company and shall become effective as to each other
person who is hereafter elected or appointed to any such office by the Company
upon such election or appointment. The Company represents to each Underwriter
that they have notified Xx. Xxxxx and other persons presently serving as such
officers of such designation and appointment and that all such persons have
accepted the same in
-31-
32
writing and that it will so notify, and obtain the consent in writing of, each
person so elected or appointed to any such office in the future. The Company
further agrees that, to the extent permitted by law, service of process upon
any such person shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. The Company further agrees to
take any and all action, including the execution and filing of all such
instruments and documents, as may be necessary to continue such designation and
appointment in full force and effect for five years from the First Closing
Date. Notwithstanding the foregoing the Company agrees, if requested by you,
to appoint CT Corporation System in San Francisco, California as successor to
such persons on the terms provided above, provided such successor accepts such
appointment in writing.
Nothing in this Section 19 should be construed as a general
consent to service of process as to which any shareholder of the Company or any
other person may rely in connection with any suit or proceeding against the
Company.
20. General. This Agreement constitutes the entire agreement
of the parties to this Agreement and supersedes all prior written or oral and
all contemporaneous oral agreements, understandings and negotiations with
respect to the subject matter hereof. This Agreement may be executed in
several counterparts, each one of which shall be an original, and all of which
shall constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be
amended or modified, and the observance of any term of this Agreement may be
waived, only by a writing signed by the Company and you.
-32-
33
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters including you, all in accordance with its terms.
Very truly yours,
FLEXTRONICS INTERNATIONAL LTD.
By:
---------------------------------------
Chairman of the Board and
Chief Executive Officer
The foregoing Underwriting
Agreement is hereby confirmed and
accepted by us in San Francisco,
California as of the date first above
written.
XXXXXXXXXX SECURITIES
XXXXX & COMPANY
UBS SECURITIES
By XXXXXXXXXX SECURITIES
By:
--------------------------------------
Senior Managing Director
-33-
34
SCHEDULE A
Number of Firm
Common Shares
Name of Underwriter to be Purchased
------------------- ---------------
Xxxxxxxxxx Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _______
Xxxxx & Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _______
UBS Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _______
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,312,500
-34-
