Exhibit 1.2
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GARMIN LTD.
(a Cayman Islands company)
1,575,000 Common Shares
INTERNATIONAL PURCHASE AGREEMENT
Dated: December ., 2000
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TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties.................................... 3
SECTION 2. Sale and Delivery to International Managers; Closing.............. 14
SECTION 3. Covenants of the Company.......................................... 16
SECTION 4. Payment of Expenses............................................... 19
SECTION 5. Conditions of International Managers' Obligations................. 20
SECTION 6. Indemnification................................................... 24
SECTION 7. Contribution...................................................... 27
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.... 29
SECTION 9. Termination of Agreement.......................................... 29
SECTION 10. Default by One or More of the International Managers.............. 29
SECTION 11. Default by One or More of the Selling Shareholders or the Company. 30
SECTION 12. Notices........................................................... 31
SECTION 13. Parties........................................................... 31
SECTION 14. Governing Law and Time............................................ 31
SECTION 15. Agent for Service of Process...................................... 32
SECTION 16. Effect of Headings................................................ 32
SCHEDULE A International Underwriting Schedule
SCHEDULE B International Securities to be Sold (Company and Selling
Shareholders Combined)
SCHEDULE C Selling Price
SCHEDULE D List of Persons and Entities Subject to Lock-up
Exhibit A-1 Form of Opinion of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, Counsel for the
Company, to be Delivered Pursuant to Section 5(b)(i)
i
Exhibit A-2 Form of Opinion of Xxxxxx and Calder, Special Cayman Islands
Counsel for the Company, to be Delivered Pursuant to Section
5(b)(ii)
Exhibit A-3 Form of Opinion of Fortune Land Law Offices, Special Taiwan Counsel
for the Company, to be Delivered Pursuant to Section 5(b)(iii)
Exhibit A-4 Form of Opinion of Shook, Hardy & Bacon, Special Regulatory Counsel
for the Company, to be Delivered Pursuant to Section 5(b)(iv)
Exhibit B Form of Opinion of Counsel for the Selling Shareholders, to be
Delivered Pursuant to Section 5(c)
Exhibit C Form of Lock-up from Directors, Officers or Other Shareholders
pursuant to Section 5(k)
Annex A Form of Accountants' Comfort Letter Pursuant to Section 5(g)
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GARMIN LTD.
(a Cayman Islands company)
1,575,000 Common Shares
(Par Value $0.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Dated: December ., 2000
XXXXXXX XXXXX INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
as Lead Managers of the several International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Garmin Ltd., a Cayman Islands company (the "Company"), together with
its subsidiaries, Garmin Corporation, a company formed under the laws of Taiwan,
Republic of China ("Garmin Corp.") and Garmin International, Inc., a company
formed under the laws of the State of Kansas ("Garmin International"), and the
persons listed in Schedule B hereto (the "Selling Shareholders"), confirm their
respective agreements with Xxxxxxx Xxxxx International ("MLI"), Credit Suisse
First Boston (Europe) Limited ("CSFB Europe") and each of the other
international underwriters named in Schedule A hereto (collectively, the
"International Managers", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom MLI and CSFB
Europe are acting as representatives (in such capacity, the "Lead Managers"),
with respect to (i) the issue and sale by the Company and the Selling
Shareholders, acting severally and not jointly, and the purchase by the
International Managers, acting severally and not jointly, of the respective
numbers of Common Shares, par value $0.01 per share, of the Company ("Common
Shares") set forth in said Schedules A and B hereto and (ii) the grant by the
Company and the Selling Shareholders to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 236,250 additional Common Shares to cover over-
allotments, if any. The aforesaid 1,575,000 Common Shares (the "Initial
International Securities") to be purchased by the International Managers and all
or any part of the 236,250 Common Shares subject to the
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option described in Section 2(b) hereof (the "International Option Securities")
are hereinafter called, collectively, the "International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 8,925,000 Common Shares (the
"Initial U.S. Securities") through arrangements with certain underwriters in the
United States and Canada (the "U.S. Underwriters") for which Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and
Credit Suisse First Boston Corporation ("CSFB, and together with Xxxxxxx Xxxxx,
the "U.S. Representatives") are acting as representatives and the grant by the
Company and the Selling Shareholders to the U.S. Underwriters, acting severally
and not jointly, of options to purchase all or any part of the U.S.
Underwriters' pro rata portion of up to 1,338,750 additional Common Shares
solely to cover overallotments, if any (the "U.S. Option Securities" and,
together with the International Option Securities, the "Option Securities").
The Initial U.S. Securities and the U.S. Option Securities are hereinafter
called the "U.S. Securities". It is understood that the Company is not
obligated to sell and the International Managers are not obligated to purchase,
any Initial International Securities unless all of the Initial U.S. Securities
are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Xxxxxxx Xxxxx and CSFB.
The Company and the Selling Shareholders understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement has
been executed and delivered.
The Company, the Selling Shareholders and the International Managers
agree that up to 10% of the Initial International Securities to be purchased by
the International Managers and that up to 10% of the Initial U.S. Securities to
be purchased by the U.S. Underwriters (collectively, the "Reserved Securities")
shall be reserved for sale by the Underwriters to certain eligible employees,
their relatives, and friends of the Company and its subsidiaries and persons
having business relationships with the Company, as part of the distribution of
the Securities by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. and all other applicable laws, rules and regulations.
To the extent that such Reserved Securities are not orally confirmed for
purchase by such eligible employees, their relatives, and friends of the Company
and its subsidiaries and persons having business relationships with the Company
by the end of the first business day after the date of this Agreement, such
Reserved Securities may be offered to the public as part of the public offering
contemplated hereby.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-45514) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b).
Two forms of prospectus are to be used in connection with the offering and sale
of the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of International Prospectus is identical to the
Form of U.S. Prospectus, except for the front and back cover pages and the
information under the caption "Underwriting". The information included in any
such prospectus or in any such Term Sheet, as the case may be, that was omitted
from such registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it became effective
(a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of International Prospectus and Form of U.S.
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of
International Prospectus and the final Form of U.S. Prospectus in the forms
first furnished to the Underwriters for use in connection with the offering of
the Securities are herein called the "International Prospectus" and the "U.S.
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "International Prospectus" and "U.S. Prospectus" shall
refer to the preliminary International Prospectus dated November 15, 2000 and
preliminary U.S. Prospectus dated November 15, 2000, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the International Prospectus, the U.S. Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company,
Garmin Corp. and Garmin International represent and warrant to each
International Manager as of the date hereof, as of the Closing Time referred to
in Section 2(c) hereof, and as of each Date of
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Delivery (if any) referred to in Section 2(b) hereof, and agree with each
International Manager, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectuses, any
preliminary prospectuses and any supplement thereto or prospectus wrapper
prepared in connection therewith, at their respective times of issuance and
at the Closing Time, complied and will comply in all material respects with
any applicable laws or regulations of foreign jurisdictions in which the
Prospectuses and such preliminary prospectuses, as amended or supplemented,
if applicable, are distributed in connection with the offer and sale of
Reserved Securities. Neither of the Prospectuses nor any amendments or
supplements thereto (including any prospectus wrapper), at the time the
Prospectuses or any amendments or supplements thereto were issued and at
the Closing Time (and, if any International Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434 and the
Prospectuses shall not be "materially different", as such term is used in
Rule 434, from the prospectuses included in the Registration Statement at
the time it became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the International Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by any International Manager through the Lead Managers expressly for use in
the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto), which information consists only of the following
information in the section of the Registration Statement and International
Prospectus entitled "Underwriting": the first paragraph under the
subsection entitled "Commissions and Discounts," the last paragraph under
the subsection entitled "Quotation on the Nasdaq National Market" and the
information
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under the subsections entitled "Intersyndicate Agreement" and "Price
Stabilization, Short Positions and Penalty Bids."
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules included in the Registration
Statement present fairly in accordance with GAAP the information required
to be stated therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock, other than the dividend to effect the
1.12379256 for 1 stock split with respect to the Company's Common Shares.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a company in good standing under the
laws of the Cayman Islands and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectuses and to enter into
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and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each of Garmin Corp. and Garmin
International (each a "Subsidiary" and, collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are the subsidiaries
listed on Exhibit 21 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses). The shares of issued and outstanding capital stock,
including the Securities to be purchased by the International Managers and
the U.S. Underwriters from the Selling Shareholders, have been duly
authorized and validly issued and are fully paid and non-assessable; none
of the outstanding shares of capital stock, including the Securities to be
purchased by the International Managers and the U.S. Underwriters from the
Selling Shareholders, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by the
Company, Garmin Corp. and Garmin International.
(ix) Authorization and Description of Securities. The Securities to be
purchased by the International Managers and the U.S. Underwriters from the
Company have been duly authorized for issuance and sale to the
International Managers pursuant to this Agreement and the U.S. Underwriters
pursuant to the U.S. Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to this Agreement
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and the U.S. Purchase Agreement, respectively, against payment of the
consideration set forth herein and in the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable; the
Common Shares conform to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Securities will be subject
to personal liability by reason of being such a holder; and the issuance of
the Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its Memorandum or Articles of
Association or charter or by-laws, as applicable, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement and the U.S. Purchase Agreement and the consummation of the
transactions contemplated in this Agreement, the U.S. Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by the Company with its obligations under this Agreement and the
U.S. Purchase Agreement have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant to,
the Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the Memorandum or Articles of Association or charter or
by-laws of the Company or any subsidiary or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(xi) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers,
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customers or contractors, which, in either case, may reasonably be expected
to result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement and in the
U.S. Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party
or of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and, except as otherwise provided to Underwriters'
counsel in a written certificate specifically reflecting this section of
this Agreement, neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder and under the U.S. Purchase Agreement, in connection
with the offering, issuance or sale of the Securities under this Agreement
and under the U.S. Purchase Agreement or the consummation of the
transactions contemplated by this Agreement and the U.S. Purchase
Agreement, except (i) such as have been already made or obtained or as may
be required under the 1933 Act
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or the 1933 Act Regulations and foreign or state securities or blue sky
laws and (ii) such as have been made or obtained under the laws and
regulations of jurisdictions outside the United States in which the
Reserved Securities are offered.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xvii) Title to Property. Except as otherwise disclosed in the
Prospectuses, the Company and its subsidiaries have good and marketable
title to all real property owned by the Company and its subsidiaries and
good title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described
in the Prospectuses or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the business
of the Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the Prospectuses, are in full force and effect, and neither
the Company nor any subsidiary has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the Company
or any subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to
the continued possession of the leased or subleased premises under any such
lease or sublease.
(xviii) Compliance with Cuba Act. The Company and its subsidiaries
have complied with, and are and will be in compliance with, the provisions
of that certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the rules
and regulations thereunder (collectively, the "Cuba Act") or are exempt
therefrom.
(xix) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and as
contemplated by the U.S. Purchase Agreement and the application of the net
proceeds therefrom as described in the Prospectuses will not be, an
"investment company" or an entity "controlled" by an
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"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xxi) Registration Rights. There are no persons with registration
rights or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Company under
the 1933 Act.
(xxii) No Unlawful Payment. Neither the Company nor any of its
subsidiaries, nor, to the best knowledge of the Company, Garmin Corp. and
Garmin International, any director, officer, employee, agent or other
affiliate or other person associated with or acting on behalf of the
Company or any of its subsidiaries, has made any unlawful payment or
expense relating to political activity; made any direct or indirect
unlawful payment to any Taiwanese or Cayman Islands or foreign governmental
official or employee from corporate funds; or made any unlawful payment or
taken any other unlawful action which is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977, as amended (the "FCPA"), or
which would have been in violation of the FCPA had any of such persons been
subject to the FCPA at all times.
(xxiii) Reorganization. The reorganization described in the section
of the Registration Statement and Prospectuses entitled "Reorganization"
and contemplated by the Shareholders Agreement has been completed, and
together with (1) that certain letter agreement dated September 20, 2000
addressed to Garmin Ltd. From Xxxxxxx Xxxxx
10
Capital Corporation, Garmin Funding, Inc. and Citibank, N.A. (collectively,
the "Lenders"), (2) those certain Demand Promissory Notes dated September
20, 2000 made by Garmin Ltd. in favor of each of the Lenders (the "Notes"),
(3) the Guarantee (as defined in the Notes), (4) the Guarantor Pledge
Agreement (as defined in the Notes), (5) the Guarantor Cash Collateral and
Blocked Account Agreement (as defined in the Notes), (6) the Subordination
Agreement (as defined in the Notes, (7) the Fee Letter (as defined in the
Notes), (8) the Escrow Agreement dated as of September 20, 2000 among
Garmin Ltd., Dr. E.F. Lan and International Commerce Bank of China, and (9)
the Borrow Cash Collateral and Blocked Account Agreement (as defined in the
Notes) (the documents described in the above clauses (1) through (9) as
executed and delivered on September 20, 2000 being collectively referred to
herein as the "Bridge Loan Agreements") and (10) the Shareholders Agreement
complies in all respects with applicable law.
(xxiv) No Other Brokerage Fee. Except as disclosed in the
Prospectuses, there are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally represents and warrants to each International
Manager as of the date hereof, as of the Closing Time, and agrees with each
International Manager, as follows:
(i) Accurate Disclosure. To the knowledge of such Selling
Shareholder, the representations and warranties of the Company contained in
Section 1(a) hereof are true and correct; the Registration Statement, the
Prospectuses and any amendments or supplements thereto (including any
prospectus wrapper), insofar as it relates to such Selling Shareholder,
does not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; such
Selling Shareholder is not prompted to sell the Securities to be sold by
such Selling Shareholder hereunder and under the U.S. Purchase Agreement by
any information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(ii) Authorization of Agreements. Such Selling Shareholder has the
full right, power and authority to enter into this Agreement, the U.S.
Purchase Agreement and a Power of Attorney (the "Power of Attorney") and a
Letter of Transmittal and Custody Agreement (the "Custody Agreement") and
to sell, transfer and deliver the Securities to be sold by such Selling
Shareholder hereunder and under the U.S. Purchase Agreement. The execution
and delivery of this Agreement, the U.S. Purchase Agreement and the Power
of Attorney and Custody Agreement and the sale and delivery of the
Securities to be sold by such Selling Shareholder and the consummation of
the transactions contemplated herein and therein and compliance by such
Selling Shareholder with its obligations hereunder and thereunder have been
duly authorized by such Selling Shareholder and do not and will not,
whether with or without the giving of notice or
11
passage of time or both, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any tax, lien,
charge or encumbrance upon the Securities to be sold by such Selling
Shareholder or any property or assets of such Selling Shareholder pursuant
to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other agreement or instrument to which
such Selling Shareholder is a party or by which such Selling Shareholder
may be bound, or to which any of the property or assets of such Selling
Shareholder is subject, nor will such action result in any violation of the
provisions of the charter or by-laws or other organizational instrument of
such Selling Shareholder, if applicable, or any applicable treaty, law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over such Selling Shareholder or any of its properties.
(iii) Good and Marketable Title. Such Selling Shareholder has and
will at the Closing Time have good and marketable title to the Securities
to be sold by such Selling Shareholder hereunder and under the U.S.
Purchase Agreement, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind, other than
pursuant to this Agreement and the U.S. Purchase Agreement; and upon
delivery of such Securities and payment of the purchase price therefor as
herein contemplated, assuming each such International Manager or U.S.
Underwriter, as the case may be, has no notice of any adverse claim, each
of the International Managers or U.S. Underwriters, as the case may be,
will receive good and marketable title to the Securities purchased by it
from such Selling Shareholder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement. Such
Selling Shareholder has duly executed and delivered, in the form heretofore
furnished to CSFB and Xxxxxxx Xxxxx, the Power of Attorney and the Custody
Agreement with Min X. Xxx and Xxxx X. Xxxxxxx, or either of them, as
attorney(s)-in-fact (the "Attorney(s)-in-Fact") and UMB Bank N.A., as
custodian (the "Custodian"); the Custodian is authorized to deliver the
Securities to be sold by such Selling Shareholder hereunder and under the
U.S. Purchase Agreement and to accept payment therefor; and each Attorney-
in-Fact is authorized to execute and deliver this Agreement and the U.S.
Purchase Agreement and the certificate referred to in Section 5(f) hereof
and thereof or that may be required pursuant to Section 5(m) hereof and
thereof on behalf of such Selling Shareholder, to sell, assign and transfer
to the International Managers or U.S. Underwriters, as the case may be, the
Securities to be sold by such Selling Shareholder hereunder and thereunder,
to determine the purchase price to be paid by the International Managers or
U.S. Underwriters, as the case may be, to such Selling Shareholder, as
provided in Section 2(a) hereof and of the U.S. Purchase Agreement, to
authorize the delivery of the Securities to be sold by such Selling
Shareholder hereunder and thereunder, to accept payment therefor, and
otherwise to act on behalf of such Selling Shareholder in connection with
this Agreement and the U.S. Purchase Agreement.
(v) Absence of Manipulation. Such Selling Shareholder has not taken,
and will not take, directly or indirectly, any action which is designed to
or which has
12
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(vi) Absence of Further Requirements. To the best knowledge of such
Selling Shareholder, no filing with, or consent, approval, authorization,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by each Selling Shareholder of its obligations hereunder or
under the U.S. Purchase Agreement or in the Power of Attorney and the
Custody Agreement, or in connection with the sale and delivery of the
Securities hereunder or under the U.S. Purchase Agreement or the
consummation of the transactions contemplated by this Agreement and the
U.S. Purchase Agreement, except (i) such as may have previously been made
or obtained or as may be required under the 1933 Act or the 1933 Act
Regulations and foreign or state securities or blue sky laws and (ii) such
as have been made or obtained under the laws and regulations of
jurisdictions outside the United States in which the Reserved Securities
are offered.
(vii) Restriction on Sale of Securities. During a period of 180 days
from the date of the Prospectuses, such Selling Shareholder will not,
without the prior written consent of Xxxxxxx Xxxxx and CSFB, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of, directly or indirectly,
any Common Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Shares, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the Securities to be sold hereunder or under the U.S. Purchase
Agreement or (B) to any offer, sale, assignment or other transfer of Common
Shares by any of the Company's executive officers, directors or other
shareholders to family trusts, provided that such trusts agree in writing
with Xxxxxxx Xxxxx and CSFB to be bound by a lock-up agreement in form
identical to Exhibit C hereto and to the U.S. Purchase Agreement.
(viii) Certificates Suitable for Transfer. Certificates for all of
the Securities to be sold by such Selling Shareholder pursuant to this
Agreement and the U.S. Purchase Agreement, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures guaranteed (except in the case of
Taiwanese Selling Shareholders), have been placed in custody with the
Custodian with irrevocable conditional instructions to deliver such
Securities to the Underwriters pursuant to this Agreement and the U.S.
Purchase Agreement.
(ix) No Association with NASD. Neither such Selling Shareholder nor
any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with
13
(within the meaning of Article I, Section 1(m) of the By-laws of the
National Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(x) No Unlawful Payment. Neither such Selling Shareholder, nor, to
the best knowledge of such Selling Shareholder, any director, officer,
employee, agent or other affiliate or other person associated with or
acting on behalf of such Selling Shareholder, has made any unlawful payment
or expense relating to political activity; made any direct or indirect
unlawful payment to any Taiwanese or Cayman Islands or foreign governmental
official or employee from corporate funds; or made any unlawful payment or
taken any other unlawful action which is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977, as amended (the "FCPA"), or
which would have been in violation of the FCPA had any of such persons been
subject to the FCPA at all times.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Lead Managers or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Shareholder as such and
delivered to the Lead Managers or to counsel for the Underwriters pursuant to
the terms of this Agreement and the U.S. Purchase Agreement shall be deemed a
representation and warranty by such Selling Shareholder to the Underwriters as
to the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial International Securities. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company and each Selling Shareholder, severally and not jointly,
agree to sell to each International Manager, severally and not jointly, and each
International Manager, severally and not jointly, agrees to purchase from the
Company and each Selling Shareholder, at the price per share set forth in
Schedule C, that proportion of the number of Initial International Securities
set forth in Schedule B opposite the name of the Company or such Selling
Shareholder, as the case may be, which the number of Initial International
Securities set forth in Schedule A opposite the name of such International
Manager, plus any additional number of Initial International Securities which
such International Manager may become obligated to purchase pursuant to the
provisions of Section 10 hereof, bears to the total number of Initial
International Securities, subject, in each case, to such adjustments among the
International Managers as the Lead Managers in their sole discretion shall make
to eliminate any sales or purchases of fractional securities.
(b) International Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company and the Selling Shareholders, acting
severally and not jointly, hereby grant an option to the International Managers,
severally and not jointly, to purchase up to an additional 236,250 Common
Shares, as set forth in Schedule B, at the price per share set forth in
14
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial International Securities but
not payable on the International Option Securities. The option hereby granted
will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
International Securities upon notice by CSFB to the Company and the Selling
Shareholders setting forth the number of International Option Securities as to
which the several International Managers are then exercising the option and the
time and date of payment and delivery for such International Option Securities.
Any such time and date of delivery for the International Option Securities (a
"Date of Delivery") shall be determined by CSFB, but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as
to all or any portion of the International Option Securities, each of the
International Managers, acting severally and not jointly, will purchase that
proportion of the total number of International Option Securities then being
purchased which the number of Initial International Securities set forth in
Schedule A opposite the name of such International Manager bears to the total
number of Initial International Securities, subject in each case to such
adjustments as CSFB in its discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial International Securities shall be made at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by Xxxxxxx Xxxxx and the
Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern Time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by Xxxxxxx Xxxxx, the Company and the
Selling Shareholders (such time and date of payment and delivery being herein
called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by Xxxxxxx Xxxxx and the Company and the Selling
Shareholders, on each Date of Delivery as specified in the notice from Xxxxxxx
Xxxxx to the Company and the Selling Shareholders.
Payment shall be made to the Company and the Selling Shareholders by wire
transfer of immediately available funds to bank accounts designated by the
Company and the Custodian pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the Lead
Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, which it has agreed to purchase. MLI or CSFB Europe,
individually and not as representatives of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
15
International Securities or the International Option Securities, if any, to be
purchased by any International Manager whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such International Manager from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers may
request in writing at least three full business days before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Initial International Securities and the International Option Securities, if
any, will be made available for examination and packaging by the Lead Managers
in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Lead Managers immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Lead Managers notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectuses, will furnish
the Lead Managers with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Lead Managers or counsel for the Underwriters
shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Lead Managers and counsel for the Underwriters, without
charge, signed copies of
16
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) and
signed copies of all consents and certificates of experts as the Lead Managers
may reasonably request, and will also deliver to the Lead Managers, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the International
Managers. The copies of the Registration Statement and each amendment thereto
furnished to the International Managers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The International Managers acknowledge that
the Company has delivered to each International Manager, without charge, as many
copies of each preliminary prospectus as such International Manager reasonably
requested, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to each
International Manager, without charge, during the period when the International
Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), such number of copies of the
International Prospectus (as amended or supplemented) as such International
Manager may reasonably request. The International Prospectus and any amendments
or supplements thereto furnished to the International Managers will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement, the U.S.
Purchase Agreement and in the Prospectuses. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), at its own expense, such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectuses comply with
such requirements, and the Company will furnish to the International Managers
such number of copies of such amendment or supplement as the International
Managers may reasonably request. Neither the Lead Managers' consent to, nor the
International Managers' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(f) Blue Sky Qualifications. The Company will use its reasonable best
efforts, in cooperation with the International Managers, to qualify the
International Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the Lead
Managers may designate and to maintain such qualifications in
17
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
International Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds".
(i) Listing. The Company will use its reasonable best efforts to effect
and maintain the quotation of the Securities on the Nasdaq National Market and
will file with the Nasdaq National Market all documents and notices required by
the Nasdaq National Market of companies that have securities that are traded in
the over-the-counter market and quotations for which are reported by the Nasdaq
National Market.
(j) Restriction on Sale of Securities. During a period of 180 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of Xxxxxxx Xxxxx and CSFB, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any Common Shares or any securities convertible
into or exercisable or exchangeable for Common Shares or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Shares, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder or under the U.S. Purchase Agreement, (B)
any Common Shares issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and
referred to in the Prospectuses, (C) any Common Shares issued or options to
purchase Common Shares granted pursuant to the Company's 2000 Equity Incentive
Plan, (D) any Common Shares issued or options to purchase Common Shares granted
pursuant to the 2000 Non-Employee Directors Option Plan or any dividend
reinvestment plan, (E) any Common Shares issued pursuant to the Company's
Employee Stock Purchase Plan, (F) any Common Shares issued pursuant to Garmin
International's Savings and Profit Sharing Plan, (G) any offer, sale, assignment
or other transfer of Common Shares by any of the Company's
18
executive officers, directors or other shareholders to family trusts, provided
that such trusts agree to be bound by a lock-up agreement substantially in the
form of Exhibit C hereto or to the U.S. Purchase Agreement, or (H) any equity
shares issued in connection with any bona fide business acquisition of or by the
Company (whether by reconstruction or amalgamation, consolidation, sale of
assets, sale or exchange of stock or otherwise), provided that prior to any such
issuance, the recipients of such equity shares in such transaction shall have
agreed in writing that, unless they have received the prior consent of CSFB and
Xxxxxxx Xxxxx, they will be bound by the lock-up restrictions described above
for the remainder of such 180-day period.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(l) Compliance with NASD Rules. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules
from sale, transfer, assignment, pledge or hypothecation for a period of three
months following the date of this Agreement. The International Managers will
notify the Company as to which persons will need to be so restricted. At the
request of the International Managers, the Company will direct the transfer
agent to place a stop transfer restriction upon such securities for such period
of time. Should the Company release, or seek to release, from such restrictions
any of the Reserved Securities, the Company agrees to reimburse the
International Managers for any reasonable expenses (including, without
limitation, legal expenses) they incur in connection with such release.
(m) Compliance with Rule 463. The Company will file with the Commission
such reports on Form SR as may be required pursuant to Rule 463 of the 1933 Act
Regulations.
SECTION 4. Payment of Expenses. Expenses. The Company will pay or cause
to be paid all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the International Managers of this Agreement, any Agreement
among Underwriters and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the International
Securities, (iii) the preparation, issuance and delivery of the certificates for
the International Securities to the International Managers, including any stock
or other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the International Securities to the International
Managers and the transfer of the Securities between the U.S. Underwriters and
the International Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the
International Securities under securities laws in accordance with the provisions
of Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the International Managers of copies
of each preliminary prospectus, any Term Sheets and of the Prospectuses and any
amendments or supplements thereto, (vii) the preparation, printing and
19
delivery to the International Managers of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the International Securities, (ix) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the NASD of the terms of the sale of the
International Securities, (x) the fees and expenses incurred in connection with
the inclusion of the International Securities in the Nasdaq National Market and
(xi) all costs and expenses of the International Managers, including the
reasonable fees and disbursements of counsel for the Underwriters, in connection
with matters related to the Reserved Securities which are designated by the
Company for sale to employees, their relatives, and friends of the Company and
its subsidiaries and others having a business relationship with the Company.
(a) Expenses of the Selling Shareholders. The Selling Shareholders,
jointly and severally, will pay all expenses incident to the performance of
their respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including any stamp duties, capital duties and
stock transfer taxes, if any, payable upon the sale of the International
Securities to the International Managers and their transfer between the
International Managers pursuant to an agreement between such International
Managers, and the Company will pay the fees and disbursements of the Selling
Shareholders' respective counsel and accountants.
(b) Termination of Agreement. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Company shall reimburse the International Managers for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
(c) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of any Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to
20
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Lead Managers
shall have received the favorable opinion, dated as of Closing Time, of:
(i) Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit A-1 hereto and to
such further effect as counsel to the Underwriters may reasonably request;
(ii) Xxxxxx and Calder, special Cayman Islands counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other International Managers to the effect set forth in Exhibit
A-2 hereto and to such further effect as counsel to the Underwriters may
reasonably request;
(iii) Fortune Land Law Offices, special Taiwan counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other International Managers to the effect set forth in Exhibit
A-3 hereto and to such further effect as counsel to the Underwriters may
reasonably request; and
(iv) Shook, Hardy & Bacon, special regulatory counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other International Managers to the effect set forth in Exhibit A-4 hereto
and to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time, the
Lead Managers shall have received the favorable opinions, dated as of Closing
Time, of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel for the U.S. Selling
Shareholders, and Fortune Land Law Offices, counsel for the Taiwan Selling
Shareholders, as applicable, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letter for
each of the other International Managers to the effect set forth in Exhibit B
hereto and to such further effect as counsel to the Underwriters may reasonably
request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing Time, of
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other International Managers
with respect to the matters set forth in clauses 6, 7, 9 (solely as to the
requirements of the Nasdaq National Market), 11 (solely as to the information in
the Prospectuses under "Description of Share Capital--Common Shares") and the
penultimate paragraph of Exhibit A-1 hereto. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York
21
and the federal law of the United States, upon the opinions of counsel
satisfactory to the Lead Managers. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Lead Managers
shall have received a certificate of a Co-CEO of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to the Company's knowledge, are contemplated
by the Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the Lead
Managers shall have received a certificate of an Attorney-in-Fact on behalf of
each Selling Shareholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of each Selling Shareholder contained in Section
1(b) hereof are true and correct in all respects with the same force and effect
as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Lead Managers shall have received from Ernst & Young LLP a letter
dated such date, in form and substance satisfactory to the Lead Managers,
together with signed or reproduced copies of such letter for each of the other
International Managers containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(h) Bring-down Comfort Letter. At Closing Time, the Lead Managers shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (g) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have been
approved for inclusion in the Nasdaq National Market, subject only to official
notice of issuance.
22
(j) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the Lead Managers
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the persons listed on Schedule D hereto.
(l) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(m) Conditions to Purchase of International Option Securities. In the
event that the International Managers exercise their option provided in Section
2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company and the Selling
Shareholders contained herein and the statements in any certificates furnished
by the Company, any subsidiary of the Company and the Selling Shareholders
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Lead Managers shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of a Co-CEO of the Company and of the chief financial or chief
accounting officer of the Company confirming that the certificate delivered
at the Closing Time pursuant to Section 5(e) hereof remains true and
correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholders. A certificate, dated such
Date of Delivery, of an Attorney-in-Fact on behalf of each Selling
Shareholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinions of Counsel for Company. The favorable opinion of
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel for the Company, together with the
favorable opinions of Xxxxxx and Calder, special Cayman Islands counsel for
the Company, Fortune Land Law Offices, special Taiwan counsel for the
Company, and Shook, Hardy & Bacon, special regulatory counsel for the
Company, each in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the International
Option Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinions required by Sections 5(b)(i), (ii) and
(iii) hereof, respectively.
(iv) Opinion of Counsel for the Selling Shareholders. The favorable
opinions of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel for the U.S. Selling
Shareholders, and Fortune Land Law Offices, counsel for the Taiwan Selling
Shareholders, as applicable, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such
23
Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(c) hereof.
(v) Opinion of Counsel for Underwriters. The favorable opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated such Date
of Delivery, relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from Ernst & Young LLP, in
form and substance satisfactory to the Lead Managers and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Lead Managers pursuant to Section 5(g) hereof, except that
the "specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than five days prior to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the International Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company and the Selling Shareholders in
connection with the issuance and sale of the International Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the Lead
Managers and counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of International
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
International Option Securities, may be terminated by the Lead Managers by
notice to the Company at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. Each of the Company, Garmin
Corp. and Garmin International jointly and severally, agree to indemnify and
hold harmless each International Manager and each person, if any, who controls
any International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the extent and in the manner set forth in clauses
(i), (ii), (iii) and (iv) below. In addition, each Selling Shareholder,
severally and not jointly, agrees to indemnify and hold harmless each
International Manager and each person, if any, who controls any International
Manager within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, as follows, but only to the extent that it involves information
concerning such Selling Shareholder:
24
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
laws or regulations of foreign jurisdictions where Reserved Securities have
been offered and (B) any untrue statement or alleged untrue statement of a
material fact included in the supplement or prospectus wrapper material
distributed in Taiwan and the United Kingdom in connection with the
reservation and sale of the Reserved Securities to eligible employees,
their relatives, and friends of the Company and its subsidiaries and
persons having a business relationship with the Company or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the Prospectuses or
preliminary prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company and the Selling Shareholders; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by MLI and CSFB Europe),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission or in connection with any violation of the nature referred to in
Section 6(a)(ii)(A) hereof, to the extent that any such expense is not paid
under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through the Lead Managers expressly
25
for use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto), which information consists only of the following
information in the section of the Registration Statement and International
Prospectus entitled "Underwriting": the first paragraph under the subsection
entitled "Commissions and Discounts," the last paragraph under the subsection
entitled "Quotation on the Nasdaq National Market" and the information under the
subsections entitled "Intersyndicate Agreement" and "Price Stabilization, Short
Positions and Penalty Bids".
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, Garmin Corp., Garmin International and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, and each Selling Shareholder against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the International Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by MLI and CSFB Europe,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified
26
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) or Section 6(a)(iii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) Indemnification for Reserved Securities. In connection with the offer
and sale of the Reserved Securities, the Company agrees, promptly upon a request
in writing, to indemnify and hold harmless the International Managers from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of eligible employees, their relatives, and
friends of the Company and its subsidiaries and persons having business
relationships with the Company to pay for and accept delivery of Reserved
Securities which, by the end of the first business day following the date of
this Agreement, were subject to a properly confirmed agreement to purchase.
(f) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the International Managers on the other
hand from the offering of the International Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Shareholders on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions, or in connection with any violation of the nature referred to in
Section 6(a)(ii)(A) hereof, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
on the one hand and the International Managers on the other hand in connection
with the offering of the International Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the International Securities
27
pursuant to this Agreement (before deducting expenses) received by the Company
and the Selling Shareholders and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the one
hand and the International Managers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the International Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or any violation of the nature referred to in Section 6(a)(ii)(A)
hereof.
The Company, the Selling Shareholders and the International Managers agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the International Managers
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Managers has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, Garmin Corp. and Garmin
International and each person, if any, who controls the Company or any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company or such
Selling Shareholders, as the case may be. The International Managers' respective
obligations to contribute pursuant to this
28
Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any International Manager or controlling person, or by or on behalf of the
Company or the Selling Shareholders, and shall survive delivery of the
International Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. Either MLI or CSFB Europe may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the International Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international markets, including Taiwan or the People's Republic
of China, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Lead Managers,
impracticable to market the International Securities or to enforce contracts for
the sale of the International Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or the
Nasdaq National Market, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If one or
more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the International Securities which it or they are obligated
to purchase under this Agreement (the
29
"Defaulted Securities"), the Lead Managers shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
International Managers, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Lead Managers shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of
the non-defaulting International Managers shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing Time,
the obligation of the International Managers to purchase and of the Company
to sell the International Option Securities to be purchased and sold on
such Date of Delivery shall terminate without liability on the part of any
non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the (i) Lead
Managers or (ii) the Company and any Selling Shareholder shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectuses or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section 10.
SECTION 11. Default by One or More of the Selling Shareholders or the
Company.
(a) If any Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of International Securities which such
Selling Shareholder or Selling Shareholders are obligated to sell hereunder, and
the remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of International Securities to be
sold by them hereunder to the total number to be sold by all Selling
Shareholders as set forth in Schedule B hereto, then the International Managers
may, at option of the Lead Managers, by notice from the Lead Managers to the
Company and the non-defaulting Selling Shareholders, either (a) terminate this
Agreement without any liability on the fault of any non-defaulting party except
that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and
effect or (b) elect to purchase the International Securities which the non-
defaulting Selling Shareholders and the Company have agreed to sell hereunder.
No action taken
30
pursuant to this Section 11 shall relieve any Selling Shareholder so defaulting
from liability, if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of the Lead Managers, the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectuses or in any other documents
or arrangements.
(b) If the Company shall fail at Closing Time or at the Date of
Delivery to sell the number of International Securities that it is obligated to
sell hereunder, then this Agreement shall terminate without any liability on the
part of any nondefaulting party; provided, however, that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect. No action taken
pursuant to this Section shall relieve the Company from liability, if any, in
respect of such default.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Xxxxx Xxxxx,
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of Xxxx Xxxxxxx
and at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of J. Xxxxx Xxxx;
notices to the Company shall be directed to it c/o Garmin International, Inc. at
0000 Xxxx 000xx Xxxxxx, Xxxxxx, Xxxxxx 00000, attention of Xxxxxx Xxxxxx; and
notices to the Selling Shareholders shall be directed to them c/o Garmin
International, Inc. at 0000 Xxxx 000xx Xxxxxx, Xxxxxx, Xxxxxx 00000, attention
of Xxxxxx Xxxxxx.
SECTION 13. Parties. This Agreement shall each inure to the benefit
of and be binding upon the International Managers, the Company, Garmin Corp.,
Garmin International and the Selling Shareholders and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
International Managers, the Company, Garmin Corp., Garmin International and the
Selling Shareholders and their respective successors and the controlling persons
and officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers, the Company, Garmin Corp.,
Garmin International and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of International Securities from any International
Manager shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
31
SECTION 15. Agent for Service of Process. For purposes of the
Registration Statement and the 1933 Act and the rules and regulations
promulgated thereunder, and for the purpose of complying with the laws of the
various jurisdictions wherein the International Securities are to be offered,
the Company, Garmin Corp., Garmin International and the Selling Shareholders
each appoints SNR Registered Agent Services, Inc. at 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx Xxxx, Xxxxxxxx 00000 as its agent upon whom may be served any
notice, process or pleading in any action or proceeding against it or arising
out of or in connection with this Agreement, the sale of the International
Securities or out of violation of the aforesaid laws with all other powers which
are conferred upon an agent for service by the 1933 Act and the rules and
regulations promulgated thereunder; and the Company, Garmin Corp., Garmin
International and the Selling Shareholders each consents that any action or
proceeding against it may be commenced in any court of competent jurisdiction
and proper venue within such state by service of process upon said agent with
the same effect as if the Company, Garmin Corp. and Garmin International were
organized or created under the laws of such state and had been lawfully served
with process in such state, and each of the Selling Shareholder was domiciled in
such state and had been lawfully served with process in such state.
SECTION 16. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the International
Managers, the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
GARMIN LTD.
By _____________________________________
Title:
GARMIN INTERNATIONAL, INC.
By ____________________________________
Title:
GARMIN CORPORATION
By ____________________________________
Title:
By ____________________________________
As Attorney-in-Fact acting on behalf of the
Selling Shareholders named in Schedule B hereto
33
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By: XXXXXXX XXXXX INTERNATIONAL
By _____________________________________
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
34
SCHEDULE A - INTERNATIONAL UNDERWRITING SCHEDULE
Number of
Initial
International
Name of International Managers Securities
------------------------------ ---------------
Xxxxxxx Xxxxx International...............................................
Credit Suisse First Boston (Europe) Limited...............................
Salomon Brothers International Limited....................................
---------------
Total..................................................................... 1,575,000
===============
Sch A-1
SCHEDULE B - INTERNATIONAL SECURITIES TO BE SOLD
(COMPANY AND SELLING SHAREHOLDERS COMBINED)
Number of Initial Maximum Number of
International Securities International Option
to be Sold Securities to Be Sold
------------------------ ---------------------
Garmin Ltd. 27,632
Selling Shareholders 208,618
Total...................... 1,575,000 236,250
Sch B-1
SCHEDULE C - SELLING PRICE
GARMIN LTD.
1,575,000 Common Shares
(Par Value $0.01 Per Share)
1. The initial public offering price per share for the International
Securities, determined as provided in said Section 2, shall be $..
2. The purchase price per share for the International Securities to be paid by
the several International Managers shall be $., being an amount equal to
the initial public offering price set forth above less $. per share;
provided that the purchase price per share for any International Option
Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share equal to
any dividends or distributions declared by the Company and payable on the
Initial International Securities but not payable on the International
Option Securities.
Sch C-1
SCHEDULE D
List of Persons and Entities Subject to Lock-up
1. Xxxx X. Xxxxxxx
2. Min X. Xxx
3. Min-Xxxx Xxx (Trustee of the Min-Xxxx Xxx Revocable Trust 9/28/95)
4. Xxxxxx Xxxxxx Xxxxx (Trustee of the Min-Xxxx Xxx 2000 Grantor Retained
Annuity Trust)
5. Xxxxxx Xxxxxx Xxxxx (Trustee for the Yu-Fan X. Xxx 2000 Grantor Retained
Annuity Trust)
6. Xxxxxx Xxx
7. Xxxxxxxx X. Xxxxxxx (Trustee for the Xxxx X. Xxxxxxx 2000 Grantor Retained
Annuity Trust dated October 27, 2000)
8. Xxxxxxxx X. Xxxxxxx (Trustee for the Xxxxxx X. Xxxxxxx 2000 Grantor
Retained Annuity Trust dated October 27, 2000)
9. Xxxx Xxx Xxxxx
10. Xxxx Xxxxxxxx
11. Xxxxxx X. Xxxxx
12. Xxxx Xxxx Xxx
13. Xxxxx Xxx
14. Xxxx Xxx
00. Xxxx Xxx Xxx
00. Xxxxxxx Xxx
17. Xxxxxxxx Xxx
18. Xxxxxxx Xxx
19. Xxxxx Xxxx-Fu Xxx
20. Xxxxxxx Xxx
Sch D-1
21. Xxxx-Xxxx Xxx
22. Xxxxx-Xxxx Xxxxx
23. Shu-Xxx Xxx Lin
24. Ha-Xx Xx
25. Yu-Xxx Xxxxx
26. Sen-Xxxx Xxxxx
27. Min-Shia X. Xxxx
00. Xxx-Xxxxx Xxx
29. Yin-An Xxxxx
30. Chao-Xxxxx Xx
31. Gender Industrial Corp.
32. Chi-Xxx Xxxx
33. Ching-Xxxxx Xxxxx
34. Wen-Xxx Xxxx
35. Li-Xxxx Xxxxx
36. Hsing-Xxxx Xxxxx
37. Tsung-Xx Xx
38. An-Xxxxxx Xxxxx
39. Ching-Shun Su
40. Tsung-Xxx Xxxx
41. Xxxx-Xxxxx Xxx
42. Xxxx-Xxxxx Xxx
43. Fan-Min Xxxxx
44. Li-Xxx Xxxx
45. Jiing-Fu Xxxxx
Sch D-2
46. Jia-Xxxx Xxxx
47. Pi-Xxx Xxxxx
48. Man-Xxxx X. Xxxxx
49. Yen-Fu Cheng
50. Xxxx-Xx Xxxxx
00. Xx-Xx Xxxxx
00. Han-Xxx Xxxxx
53. Xxx-Xxxxx Xxx
54. I-Mao Kuan
55. Xxxx-Xxxx Xxxxx
56. Tzay-Xxxx Xxxxx
57. Xxxx-Xxx Su
58. Xxxxx-Xxx Su
59. Hui-Xxxxx Xxxx
60. Hui-Xxx Xxxx
61. Hui-Xxx Xxxx
62. Jin-Xxxx Xxxxx
63. Xxxx-Xxx Xxx Xxxxx
64. Shi-I Xxxxx
65. Cheng-Xxx Xxxxx
66. Xxxxx-Xxxxx Xxxxx
67. Xxxx-Xxxx Xxxx
68. Yin-Xxx Xx
69. Kang-Xxx Xx
70. Xxx-Xxx Xx
Sch D-3
71. Eng-Eng Xxx Xxxxx
72. Yun-Xxxxx Xxxxx
73. Te-Xxx Xxxxx
74. Tsong-Xxxxx Xxxx
75. Xxxxx-Xxx Xxxx
76. Nai-Wu
77. Wen-I Liu
78. Shu-Xxxx Xxx
79. Su-Xxx Xxx
80. Pi-Chu Pai
81. Chi-Xxx Xxx
82. Szu-Xxx Xxx
83. Shing-Xxxxxx Xxx Xxxx
00. Xxxx-Xxxx Xxxx
00. Xxxx-Xxxxx Xxxx
00. Meei-Xxxx Xxxx
87. Yi-Ru Chen
88. Jung-Xxxx Xxxx
89. Xxxx-Xxxx Xxxxx
90. Ya-Xxxxx Xxxxx
91. Fang-Xx Xxxxx
92. Meei-May Xxxxx
93. Xxx-Xxxx Xxxx
94. Yu-Hsien Su
95. Kui-Yeh Chen
Sch D-4
96. Xxxx-Xxx Xxxxx
97. I-Xx Xxxxx
98. I-Xxxxx Xxxxx
99. Pei-Xxxx Xxxxx
100. Xxxxx Xxx
101. Xxxx-Xxx Xx
Sch D-5
Exhibit A-1
FORM OF OPINION OF XXXXXXXXXXXX XXXX & XXXXXXXXX,
COUNSEL FOR THE COMPANY, TO BE DELIVERED PURSUANT TO SECTION 5(b)(i)
1. Garmin International is validly existing as a corporation in good standing
under the laws of the State of Kansas.
2. Garmin International has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
3. Each of the Company and its subsidiaries is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in the United States in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect. Counsel may rely upon the
opinion of Xxxxxx Xxxxxx, the general counsel of Garmin International.
4. Except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding common shares of Garmin International have been duly
authorized and validly issued, are fully paid and non-assessable and, to
the best of our knowledge, are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity and none of the outstanding common
shares of Garmin International was issued in violation of the preemptive or
similar rights of any securityholder of Garmin International.
5. The U.S. Purchase Agreement and the International Purchase Agreement have
been duly authorized, executed and delivered by Garmin International.
6. The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required
filing of the Prospectuses pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best
of our knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
7. The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses, and each amendment or supplement to the
Registration Statement and Prospectuses, as of their respective effective
or issue dates (other than the financial statements and supporting
schedules included therein or omitted
A-1-1
therefrom, as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
8. If Rule 434 has been relied upon, the Prospectuses were not "materially
different," as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
9. The form of certificate used to evidence the Common Shares complies in all
material respects with the requirements of the Nasdaq National Market.
10. To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or
any subsidiary is a party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or governmental
agency or body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in the U.S. Purchase
Agreement and the International Purchase Agreement or the performance by
the Company of its obligations thereunder.
11. The information in the Prospectuses under "Description of Share Capital",
"Business--Facilities", "Business--Regulations", and "Tax
Considerations--United States Federal Income Tax Considerations" and in the
Registration Statement under Item 14, to the extent that it constitutes
matters of law, summaries of legal matters, the Company's charter and
bylaws or legal proceedings, or legal conclusions, has been reviewed by us
and is correct in all material respects; and our opinion set forth in
Exhibit 8.1 to the Registration Statement is confirmed.
12. To the best of our knowledge, there are no statutes or regulations that are
required to be described in the Prospectuses that are not described as
required.
13. All descriptions in the Registration Statement of contracts and other
documents to which the Company or its subsidiaries are a party are accurate
in all material respects; to the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are
correct in all material respects.
14. To the best of our knowledge, neither the Company nor any subsidiary is in
violation of its Memorandum and Articles of Association or charter or by-
laws, as applicable, and no default by the Company or any subsidiary exists
in the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note,
A-1-2
lease or other agreement or instrument that is described or referred to in
the Registration Statement or the Prospectuses or filed or incorporated by
reference as an exhibit to the Registration Statement.
15. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and
the 1933 Act Regulations, which have been made or obtained, or as may be
required under the securities or blue sky laws of the various states or
under the laws and regulations of jurisdictions outside the United States,
as to which we express no opinion) is necessary or required in connection
with the due authorization, execution and delivery of the U.S. Purchase
Agreement or the International Purchase Agreement or for the offering,
issuance, sale or delivery of the Securities.
16. The execution, delivery and performance of the U.S. Purchase Agreement and
the International Purchase Agreement and the consummation of the
transactions contemplated in the U.S. Purchase Agreement and the
International Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectuses
under the caption "Use Of Proceeds") and compliance by the Company with its
obligations under the U.S. Purchase Agreement and the International
Purchase Agreement do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 1(a)(x) of the
U.S. Purchase Agreement and the International Purchase Agreement) under or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant to
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to us, to which the
Company or any subsidiary is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the Memorandum of Association or Articles of Association or charter or by-
laws, as applicable, of the Company or any subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to
us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of
their respective properties, assets or operations. Counsel may rely upon
the opinion of Xxxxxx Xxxxxx with respect to agreements of the Company.
17. To the best of our knowledge, there are no persons with registration rights
or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act.
A-1-3
18. The Company is not an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the 1940 Act.
19. Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable) (except for financial
statements and schedules and other financial data included therein or
omitted therefrom, as to which we make no statement), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectuses or any amendment or supplement
thereto (except for financial statements and schedules and other financial
data included therein or omitted therefrom, as to which we need make no
statement), at the time the Prospectuses were issued, at the time any such
amended or supplemented prospectuses were issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
20. The reorganization described in the section of the Registration Statement
and Prospectuses entitled "Reorganization" and contemplated by the
Shareholders Agreement and the Bridge Loan Agreements (as defined in the
U.S. Purchase Agreement and the International Purchase Agreement) have been
completed, and comply in all respects with applicable law. The execution,
delivery and performance of each of the Bridge Loan Agreements to which
Garmin International is a party are within Garmin International's corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. The Bridge Loan Agreements have been duly
executed and delivered by Garmin International to the extent a party
thereto, and constitute legal, valid and binding obligations of each Loan
Party (as defined below), as applicable, enforceable against the Company,
Garmin Corp. and Garmin International (each a "Loan Party") in accordance
with their respective terms.
21. The choice of New York law to govern the U.S. Purchase Agreement and the
International Purchase Agreement in which such choice is stipulated is an
effective choice of law, except where there is no logical or reasonable
basis for the choice of New York law and except where the choice of New
York law infringes upon a fundamental policy of the applicable state.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Cayman Islands and Taiwan, upon the
opinion of Xxxxxx and Xxxxxx and Fortune Land Law Offices, special counsel to
the Company (which opinion shall be dated and furnished to the Lead Managers at
the Closing Time, shall be satisfactory in form and substance to counsel for the
Underwriters and shall expressly state that the International Managers may rely
on such opinion as if it were addressed to them), provided that Sonnenschein
A-1-4
Nath & Xxxxxxxxx shall state in its opinion that it believes that it and the
International Managers are justified in relying upon such opinion, and (B) as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF XXXXXX AND XXXXXX, SPECIAL CAYMAN ISLANDS
COUNSEL FOR THE COMPANY, TO BE
DELIVERED PURSUANT TO SECTION 5(b)(ii)
1. The Company has been duly incorporated for an unlimited duration and is
validly existing and in good standing under the laws of the Cayman Islands.
2. The Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and
to enter into and perform its obligations under the U.S. Purchase Agreement
and the International Purchase Agreement.
3. The authorized, issued and outstanding share capital of the Company is as
set forth in the Prospectuses in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuance, if any, pursuant
to the U.S. Purchase Agreement and the International Purchase Agreement or
pursuant to reservations, agreements, or employee benefit plans referred to
in the Prospectuses or pursuant to the exercise of convertible securities
or options referred to in the Prospectuses); the issued and outstanding
share capital of the Company, including the shares to be purchased by the
Underwriters from the Selling Shareholders, have been duly authorized and
validly issued and are fully paid and non-assessable (assuming payment
therefor); and none of the outstanding share capital of the Company was
issued in violation of the preemptive or similar rights pursuant to the
memorandum and articles of association of the Company.
4. The shares to be purchased by the Underwriters from the Company have been
duly authorized for issuance and sale to the Underwriters pursuant to the
U.S. Purchase Agreement and the International Purchase Agreement and, when
issued and delivered by the Company pursuant to the U.S. Purchase Agreement
and the International Purchase Agreement against payment of the
consideration set forth in the U.S. Purchase Agreement and the
International Purchase Agreement and relevant entries made in the register
of members of the Company, will be validly issued and fully paid and non-
assessable and no holder of such shares is or will be subject to personal
liability by reason only of being such a holder.
5. The issuance and sale of the shares by the Company and the sale of the
shares by the Selling Shareholders is not subject to preemptive or other
similar rights pursuant to the memorandum and articles of association or in
any document referred to in this opinion as having been reviewed by us.
6. The form of certificate used to evidence the shares complies in all
material respects with all applicable statutory requirements and with any
applicable requirements of the memorandum and articles of association of
the Company.
A-2-1
7. Based on our review of the Register of Writs and other Originating Process,
there is no pending action, suit, proceeding, inquiry or investigation in
the Cayman Islands to which the Company or any subsidiary is a party, or to
which the property of the Company is subject, before or brought by any
court or governmental agency or body in the Cayman Islands.
8. The information in the Prospectuses under "Description of Share Capital,"
and "Tax Considerations--Cayman Islands Tax Considerations" and in the
Registration Statement under Item 14 to the extent that it constitutes
matters of law, summaries of legal matters, the Company's memorandum and
articles of association or legal proceedings, or legal conclusions, has
been reviewed by us and is correct in all material respects; and our
opinion set forth in Exhibit 8.2 to the Registration Statement is
confirmed.
9. To the best of our knowledge, the Company is not in violation of its
memorandum or articles of association and no default by the Company exists
in the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration Statement or the Prospectuses or filed
or incorporated by reference as an exhibit to the Registration Statement.
10. The execution and delivery of the U.S. Purchase Agreement and the
International Purchase Agreement by the Company and the performance of its
obligations thereunder have been duly authorized and approved by all
necessary corporate action of the Company and do not violate, conflict with
or result in a breach of any of the terms or provisions of its memorandum
and articles of association or any law, public rule or regulation
applicable to the Company in the Cayman Islands currently in force and do
not violate, conflict with or result in a breach of any existing order or
decree of any governmental authority or agency or any official body in the
Cayman Islands.
11. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Cayman Islands court or
governmental authority or agency, is necessary or required in connection
with the due authorization, execution and delivery of the U.S. Purchase
Agreement and the International Purchase Agreement or for the offering,
issuance, sale or delivery of the shares.
12. Our opinions expressed in our legal opinion dated 20th September 2000
addressed to Xxxxxxx Xxxxx Capital Corporation, Garmin Funding, Inc. and
Citibank, N.A. were true and accurate at the date thereof and may be relied
on by you.
13. The reorganization described in the section of the Registration Statement
and Prospectuses entitled "Reorganization", and contemplated by the Bridge
Loan Agreements and the Shareholders Agreement entered into in connection
A-2-2
therewith, has been completed and complies in all respects with Cayman
Islands law.
14. The U.S. Purchase Agreement and the International Purchase Agreement when
executed and delivered for and on behalf of the Company will constitute
legal, valid and binding obligations of the Company enforceable in the
Cayman Islands in accordance with their terms except and in so far as such
enforcement may be limited as hereinafter set forth.
15. No stamp duties or other similar taxes or charges are payable under the
laws of the Cayman Islands in respect of (i) the execution or delivery of
the U.S. Purchase Agreement or the International Purchase Agreement or the
performance or enforcement of the terms thereof by any of the Underwriters,
(ii) the issuance and sale of the shares by the Company; or (iii) the sale
and delivery outside of the Cayman Islands by the Underwriters of the
shares to the initial purchasers thereof, unless they are executed in or
thereafter brought within the jurisdiction of the Cayman Islands (e.g. for
the purposes of enforcement).
16. There are currently no taxes or other charges or deductions payable (by
withholding or otherwise) to the Cayman Islands government or any taxing
authority thereof on or by virtue of (i) the execution, delivery or
enforcement of the U.S. Purchase Agreement or the International Purchase
Agreement, (ii) any payment of any nature to be made by the Company under
the U.S. Purchase Agreement or the International Purchase Agreement, (iii)
the issuance and sale of the shares by the Company, or (iv) the sale and
delivery outside the Cayman Islands by the Underwriters of the shares to
the initial purchasers thereof. The Cayman Islands currently have no
income, corporate or capital gains tax and no estate duty, inheritance tax
or gift tax.
17. The Company can xxx and be sued in its own name under the laws of the
Cayman Islands. The choice of the laws of New York to govern the U.S.
Purchase Agreement and the International Purchase Agreement will be upheld
as a valid choice of law under the laws of the Cayman Islands and the
courts of the Cayman Islands would uphold such choice of law in a suit on
the U.S. Purchase Agreement and the International Purchase Agreement
brought in the courts of the Cayman Islands, assuming it is so pleaded. An
action against the Company in the Cayman Islands under the U.S. Purchase
Agreement and the International Purchase Agreement could be instituted in
the Grand Court, which has jurisdiction over the Company and would accept
jurisdiction over any action or proceedings based on the U.S. Purchase
Agreement and the International Purchase Agreement without first having to
obtain a judgment in respect of the U.S. Purchase Agreement and the
International Purchase Agreement in a court of New York or any other
relevant jurisdiction. In the event of any proceedings being brought in the
Cayman Islands courts in respect of a monetary obligation expressed to be
payment in a currency other than Cayman Islands dollars, a Cayman Islands
court would give judgment expressed as an order to pay such
A-2-3
currency or its Cayman Islands dollar equivalent at the time of payment or
enforcement of the judgment.
18. Although there is no statutory enforcement in the Cayman Islands of
judgments obtained in New York, the courts of the Cayman Islands will
recognize and enforce a judgment of a foreign court of competent
jurisdiction in respect of any legal suit or proceeding arising out of or
relating to the U.S. Purchase Agreement and the International Purchase
Agreement without retrial on the merits based on the principle that a
judgment of a competent foreign court imposes upon the judgment debtor an
obligation to pay the sum for which judgment has been given provided that
such judgment is final and conclusive, for a liquidated sum, not in respect
of taxes or a fine or penalty, is not inconsistent with a Cayman Islands
judgment in respect of the same matter, and was not obtained in a manner
and is not of a kind the enforcement of which is contrary to the public
policy of the Cayman Islands. A Cayman Islands court may stay proceedings
if concurrent proceedings are being brought elsewhere. A foreign judgment
may be final and conclusive even if subject to appeal. However, if
applicable, a Cayman Islands court may stay enforcement until such appeal
has been heard.
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF FORTUNE LAND LAW OFFICES, SPECIAL TAIWAN LAW
COUNSEL OF THE COMPANY, TO BE
DELIVERED PURSUANT TO SECTION 5(b)(iii)
1. Garmin Corp. has been duly incorporated and is validly existing and in good
standing as a company under the laws of Taiwan.
2. Garmin Corp. has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses
and to enter into and perform its obligations under the U.S. Purchase
Agreement and the International Purchase Agreement.
3. Garmin Corp. is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
4. Except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding common shares of Garmin Corp. have been duly
authorized and validly issued, are fully paid and non-assessable and are
held of record by and, to the best of our knowledge, are beneficially owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding common shares of Garmin Corp. was issued in
violation of the preemptive or similar rights of any securityholder of
Garmin Corp.
5. The U.S. Purchase Agreement and the International Purchase Agreement have
been duly authorized, executed and delivered by Garmin Corp.
6. To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which Garmin Corp.
or any subsidiary is a party, or to which the property of Garmin Corp. or
any subsidiary is subject, before or brought by any court or governmental
agency or body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in the U.S. Purchase
Agreement and the International Purchase Agreement or the performance by
Garmin Corp. of its obligations thereunder.
7. To the best of our knowledge, Garmin Corp. is not in violation of its
charter or by-laws and no default by Garmin Corp. exists in the due
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration
A-3-1
Statement or the Prospectuses or filed or incorporated by reference as an
exhibit to the Registration Statement.
8. The execution, delivery and performance of the U.S. Purchase Agreement and
the International Purchase Agreement and the consummation of the
transactions contemplated in the U.S. Purchase Agreement and the
International Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectuses
under the caption "Use Of Proceeds") and compliance by Garmin Corp. with
its obligations under the U.S. Purchase Agreement and the International
Purchase Agreement do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 1(a)(x) of the
U.S. Purchase Agreement and the International Purchase Agreement) under or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of Garmin Corp. or any subsidiary pursuant to
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to us, to which
Garmin Corp. or any subsidiary is a party or by which it or any of them may
be bound, or to which any of the property or assets of Garmin Corp. or any
subsidiary is subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of Garmin Corp. or any subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to
us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over Garmin Corp. or any subsidiary or any of
their respective properties, assets or operations.
9. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, in Taiwan is necessary or required in connection with
the due authorization, execution and delivery of the U.S. Purchase
Agreement and the International Purchase Agreement or for the offering,
issuance, sale or delivery of the Securities.
10. The reorganization described in the section of the Registration Statement
and Prospectuses entitled "Reorganization" and contemplated by the
Shareholders Agreement has been completed, and together with the Bridge
Loan Agreements and the Shareholders Agreement complies in all respects
with applicable law. Garmin Corp. (a) has the corporate power and authority
to execute and deliver the Bridge Loan Agreements to which it is a party
and to borrow and perform its obligations thereunder and the transactions
contemplated thereby and to grant the security interests to be granted by
it pursuant to the Pledge Agreement and (b) has duly authorized, executed
and delivered each Bridge Loan Agreement to which it is a party. The
execution and delivery by Garmin Corp. of the Bridge Loan Agreements to
which it is a party, and the U.S. Purchase Agreement and the International
Purchase Agreement performance of its obligations under the Bridge Loan
Agreements and the U.S. Purchase Agreement and the
A-3-2
International Purchase Agreement performance of its obligations under
the Bridge Loan Agreements and the U.S. Purchase Agreement and the
International Purchase Agreement and performance of the other
transactions contemplated thereby and granting of the security
interests to be granted by it pursuant to the Pledge Agreement(s) will
not result in any violation of (1) the articles of incorporation or
by-laws of Garmin Corp., (2) any Taiwan law or any rule or regulation
issued pursuant to any Taiwan law or any order issued by any court or
governmental agency or body and (b) will not breach or result in an a
default under or result in the creation of any lien upon or security
interest in Garmin Corp.'s properties pursuant to the terms of any
other agreement or any other instrument to which Garmin Corp. is
party.
11. Garmin Corp.'s submission to the non-exclusive jurisdiction of any
court of competent jurisdiction provided for in the U.S. Purchase
Agreement and the International Purchase Agreement is valid and
enforceable under the laws of Taiwan. The choice of New York law, as
the governing law of the U.S. Purchase Agreement and the International
Purchase Agreement, is under the laws of Taiwan, valid and effective
choice of law. A judgment rendered by any court of or in the State of
New York, County of New York pursuant to a legal action instituted
before such courts in connection with the U.S. Purchase Agreement and
the International Purchase Agreement would be enforceable against
Garmin Corp. in the courts of Taiwan. It is not necessary under Taiwan
law (i) in order to enable the Underwriters to enforce their rights
under the U.S. Purchase Agreement or the International Purchase
Agreement in Taiwan or (ii) by reason of the execution, delivery or
performance of such agreements that any Underwriter should be licensed
or qualified to carry on business or satisfy any so called "doing
business" requirements in Taiwan.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of the Cayman Islands and the United
States, upon the opinion of Xxxxxx and Xxxxxx and Xxxxxxxxxxxx Xxxx & Xxxxxxxxx,
special counsel and counsel to the Company (which opinion shall be dated and
furnished to the Representatives at the Closing Time, shall be satisfactory in
form and substance to counsel for the Underwriters and shall expressly state
that the International Managers may rely on such opinion as if it were addressed
to them), provided that Fortune Land Law Offices shall state in its opinion that
it believes that it and the International Managers are justified in relying upon
such opinion, and (B) as to matters of fact (but not as to legal conclusions),
to the extent they deem proper, on certificates of responsible officers of the
Company and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions.
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF SHOOK, HARDY & BACON, SPECIAL REGULATORY
COUNSEL OF THE COMPANY, TO BE
DELIVERED PURSUANT TO SECTION 5(b)(iv)
[Date]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
CREDIT SUISSE FIRST BOSTON CORPORATION
as U.S. Representatives of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
XXXXXXX XXXXX INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
as Lead Managers of the several International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Re: Garmin Ltd., Special Federal Communications
Commission Counsel's Opinion
Ladies and Gentlemen:
We serve as special Federal Communications Commission ("FCC") counsel
for Garmin Ltd. (the "Company") in connection with its operations pursuant to
the rules and regulations of the FCC (47 C.F.R. (S)(S) 0.1 et seq.). This
opinion is delivered to you at the request of the Company in connection with the
following sections of its S-1 Registration Statement dated [ ], 2000 entitled:
"RISKS RELATED TO OUR COMPANY - ANY REALLOCATION OF RADIO FREQUENCY SPECTRUM
COULD CAUSE INTERFERENCE WITH THE RECEPTION OF GPS SIGNALS. THIS INTERFERENCE
COULD HARM OUR BUSINESS."; and, "ULTRA-WIDEBAND RADIO DEVICES COULD CAUSE
INTERFERENCE WITH THE RECEPTION OF GPS SIGNALS. THIS INTERFERENCE COULD HARM OUR
BUSINESS."; in addition, this opinion relates to the "REGULATIONS" section, but
only as that section relates to FCC regulatory matters (the "Applicable S-1
Sections").
A-4-1
For the purposes of this opinion, we have made such examination of the
Communications Act of 1934, as amended (the "Communications Act"), and the
rules, regulations, decisions and policies published and promulgated by the FCC
thereunder and pursuant thereto (collectively, together with the Communications
Act, the "Rules") as we have deemed necessary or proper for this opinion. In
addition, we have investigated such questions of law and examined such documents
as in our judgment were necessary to enable us to render the opinions expressed
below. We are opining solely with respect to the Rules, and we express no
opinion herein concerning any other laws, rules or regulations or as to the laws
of any jurisdiction.
As to any facts material to the opinions expressed herein, we have
reviewed and relied upon: (a) statements and representations made to us by the
Company; (b) the publicly available files of the FCC; (c) a review of such of
our internal records and files as we have deemed appropriate. In our
investigation we have assumed (i) the genuineness of the signatures, and the
authority of the persons signing all documents in connection with which this
opinion is rendered, (ii) the authenticity of all documents submitted to us as
originals, (iii) the conformity to authentic original documents of all documents
submitted to us as copies and the authenticity of the originals of said copies
and (iv) the due authorization, execution and delivery of all documents,
instruments and agreements. Where, in this opinion, the phrase "to the best of
our knowledge" or like language is used to qualify an opinion herein, it shall
mean that, in addition to relying on the matters set forth in the foregoing
sentences, the opinion so qualified is limited to the knowledge of our lawyers
currently within our firm who have worked on matters on behalf of the Company.
Based upon the foregoing, and in reliance thereon, and subject to the
limitations, qualifications, assumptions and exceptions set forth herein, we are
of the opinion that:
The statements contained in the Applicable S-1 Sections insofar as
they describe the Company's risks and operations pursuant to the Rules
constitute an accurate summary thereof in all material respects.
Without limiting the applicability of any qualification, limitation or
assumption set forth herein, the foregoing opinion is subject to the following
additional qualifications:
a. We are qualified to practice law in the District of Columbia. The
opinion set forth herein is limited in all respects to matters governed by
the federal law of the United States and the law of the District of
Columbia, in each case to the extent applicable and not excepted from the
scope of the opinion set forth herein. We express no opinion as to choice
of law or conflicts of law.
b. The information set forth herein is as of the date hereof. We assume
no obligation to advise you of changes which may hereafter be brought to
our attention. Our opinion is given as of the date hereof and are expressly
limited to the matters stated herein, and no opinion is implied or may be
inferred beyond what is explicitly stated in this letter. We do not opine
with respect to any law, regulation, rule or governmental policy which may
A-4-2
be proposed, enacted or adopted after the date hereof, nor do we assume any
responsibility to advise you of future changes in our opinion.
c. This opinion is furnished by us solely for your benefit and may be
relied upon only by you in connection with the matters discussed herein.
This opinion may not be used, circulated or quoted, in whole or in part, or
be furnished to or relied upon by any other person or governmental agency
without our prior written consent.
d. This letter expresses our professional legal opinion as to the
foregoing matters and is based upon our professional knowledge and
judgment; it is not, however, to be construed as a guaranty.
Very truly yours,
SHOOK, HARDY & BACON, L.L.P.
A-4-3
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS,
TO BE DELIVERED PURSUANT TO SECTION 5(c)
1. No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the
order of the Commission declaring the Registration Statement effective and
such authorizations, approvals or consents as may be necessary under state
securities laws, as to which we express no opinion) is necessary or
required to be obtained by the Selling Shareholders for the performance by
each Selling Shareholder of its obligations under the U.S. Purchase
Agreement or the International Purchase Agreement or in the Power of
Attorney or under the Custody Agreement, or in connection with the offer,
sale or delivery of the Securities.
2. Each Power of Attorney and Custody Agreement has been duly executed and
delivered by the respective Selling Shareholders named therein and
constitutes the legal, valid and binding agreement of such Selling
Shareholder.
3. The U.S. Purchase Agreement and the International Purchase Agreement have
been duly authorized, executed and delivered by or on behalf of each
Selling Shareholder.
4. Each Attorney-in-Fact has been duly authorized by the Selling Shareholders
to deliver the Securities on behalf of the Selling Shareholders in
accordance with the terms of the U.S. Purchase Agreement and the
International Purchase Agreement.
5. The execution, delivery and performance of the U.S. Purchase Agreement and
the International Purchase Agreement and the Power of Attorney and the
Custody Agreement and the sale and delivery of the Securities and the
consummation of the transactions contemplated in the U.S. Purchase
Agreement and the International Purchase Agreement and in the Registration
Statement and compliance by each Selling Shareholder with its obligations
under the U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized by all necessary action on the part of each
Selling Shareholder and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default under or result in the creation or imposition of any
tax, lien, charge or encumbrance upon the Securities or any property or
assets of the Selling Shareholders pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or
other instrument or agreement to which any Selling Shareholder is a party
or by which they may be bound, or to which any of the property or assets of
the Selling Shareholders may be subject nor will such action result in any
violation of the provisions of the charter or by-laws of the Selling
Shareholders, if applicable, or any law, administrative regulation,
judgment or order of any governmental agency
B-1
or body or any administrative or court decree having jurisdiction over such
Selling Shareholder or any of its properties.
6. To the best of our knowledge, each Selling Shareholder has valid and
marketable title to the Securities to be sold by such Selling Shareholder
pursuant to the U.S. Purchase Agreement and the International Purchase
Agreement, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind, and has full right, power and
authority to sell, transfer and deliver such Securities pursuant to the
U.S. Purchase Agreement and the International Purchase Agreement. By
delivery of a certificate or certificates therefor such Selling Shareholder
will transfer to the Underwriters who have purchased such Securities
pursuant to the U.S. Purchase Agreement and the International Purchase
Agreement (without notice of any defect in the title of such Selling
Shareholder and who are otherwise bona fide purchasers for purposes of the
Uniform Commercial Code) valid and marketable title to such Securities,
free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind.
B-2
Exhibit C
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS
PURSUANT TO SECTION 5(K)
________, 2000
Garmin Ltd.
Xxxxxxxxxx Xxxxx
X.X. Xxx 00000XXX
113 South Church Street, Xxxxxx Town,
Grand Cayman, Cayman Islands
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney, Inc.
C/O: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned understands that Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as Representatives of the several underwriters (the
"Underwriters"), propose to enter into a Purchase Agreement with Garmin Ltd.
(the "Company"), providing for the initial public offering (the "Initial Public
Offering") of common shares, par value $0.01 per share (the "Common Shares"), of
the Company.
To induce the Underwriters that may participate in the Initial Public
Offering to continue their efforts in connection with the Initial Public
Offering, the undersigned, during the period commencing on the date hereof and
ending 180 days after the date of the final prospectus relating to the Initial
Public Offering:
1. agrees not to (x) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any Common Shares or
any securities convertible into or exercisable or exchangeable for
Common Shares (including, without limitation, securities convertible
into or exercisable or exchangeable for Common Shares which may be
deemed to be beneficially owned by the undersigned in accordance with
the rules and regulations of the Securities and Exchange Commission)
or (y) enter into any swap or other arrangement that transfers all or
a portion of the economic consequences associated with the ownership
of any Common Shares (regardless of whether any of the transactions
described in clause (x) or (y) is to be settled by
C-1
the delivery of Common Shares, or such other securities, in cash or
otherwise), without the prior written consent of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated;
2. agrees not to make any demand for, or exercise any right with respect
to, the registration of any Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares,
without the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated; and
3. authorizes the Company to cause the transfer agent to decline to
transfer and/or to note stop transfer restrictions on the transfer
books and records of the Company with respect to any Common Shares and
any securities convertible into or exercisable or exchangeable for
Common Shares for which the undersigned is the record holder and, in
the case of any such shares or securities for which the undersigned is
the beneficial but not the record holder, agrees to cause the record
holder to cause the transfer agent to decline to transfer and/or to
note stop transfer restrictions on such books and records with respect
to such shares or securities.
Notwithstanding the above, the undersigned may offer, sell, assign or
otherwise transfer Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares (i) to trusts for the benefit of
the undersigned and/or members of the immediate family of the undersigned
provided each recipient of the above transfer agrees in writing to be bound by
the terms of this letter agreement in form identical to this letter agreement;
or (ii) as part of the Initial Public Offering; or (iii) as part of the
reorganization as described in the initial prospectus relating to the Initial
Public Offering.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into the agreements set forth herein, and
that, upon request, the undersigned will execute any additional documents
reasonably necessary or desirable in connection with the enforcement hereof. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of the undersigned and any obligations of the undersigned shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
C-2
Very truly yours,
___________________________
Name: (Please Type)
Address
Social Security or Taxpayer
Identification or Passport Number:
Number of Common Shares owned or
to be owned, if known:
Number of securities that are
convertible into, or exercisable or
exchangeable for, Common Shares:
Number of Common Shares issuable
upon conversion, exercise or exchange
of such securities:
C-3
Annex A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(g)
December , 2000
Garmin Ltd.
c/o Garmin International, Inc.
0000 Xxxx 000xx Xxxxxx
Xxxxxx, Xxxxxx 00000
and
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
CREDIT SUISSE FIRST BOSTON CORPORATION
as U.S. Representatives of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
XXXXXXX XXXXX INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
as Lead Managers of the several International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Dear Sirs:
We have audited the consolidated balance sheets of Garmin Ltd. (the
"Company") and subsidiaries as of December 25, 1999 and December 26, 1998 and
the consolidated statements of income, stockholders' equity, and cash flows for
each of the three years in the period ended December 25, 1999, and the related
schedule, all included in the Registration Statement (No. 333-45514) on Form S-1
filed by the Company under the Securities Act of 1933 (the "Act"); our reports
with respect thereto also are included in such Registration Statement as amended
as of December , 2000, herein referred to as the "Registration Statement."
In connection with the Registration Statement:
Annex A
1. We are independent auditors with respect to the Company within the
meaning of the Act and the applicable rules and regulations thereunder adopted
by the SEC.
2. In our opinion, the consolidated financial statements and financial
statement schedule audited by us and included in the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations adopted by the
SEC.
3. We have not audited any financial statements of the Company as of any
date or for any period subsequent to December 25, 1999. The purpose (and
therefore the scope) of our audit for the year ended December 25, 1999 was to
enable us to express our opinion on the consolidated financial statements at
December 25, 1999 and for the year then ended, but not on the financial
statements for any interim period within such year. Therefore, we are unable to
express and do not express an opinion on: the unaudited consolidated balance
sheet at September 23, 2000; the unaudited consolidated statements of income,
stockholders' equity, and cash flows for the nine-month periods ended September
23, 2000 and September 25, 1999, included in the Registration Statement; or the
financial position, results of operations, or cash flows as of any date or for
any period subsequent to December 25, 1999.
4. For purposes of this letter, we have read the 2000 minutes of meetings
of the stockholders and the Board of Directors of the Company and its
subsidiaries as set forth in the minute books through December , 2000,
officials of the Company having advised us that the minutes of all such meetings
through that date were set forth therein, and have carried out other procedures
to December , 2000 as follows (our work did not extend to the period from
December , 2000 to December , 2000 inclusive):
a. With respect to the nine-month periods ended September 23, 2000
and September 25, 1999, we have:
(1) performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS 71, Interim Financial Information, on
the unaudited consolidated balance sheet at September 23, 2000 and the
unaudited consolidated statements of income, stockholders' equity, and
cash flows for the nine-month periods ended September 23, 2000 and
September 25, 1999, included in the Registration Statement; and
(2) inquired of certain officials of the Company who have responsibility
for financial and accounting matters as to whether the unaudited
consolidated financial statements referred to under a.(1) comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations adopted
by the SEC.
b. With respect to the period from September 24, 2000 to October 21,
2000, we have:
(1) read the unaudited consolidated financial statements for the Company's
fiscal month of October of both 2000 and 1999 furnished to us by the
Company, officials of the
Annex A
Company having advised us that no such financial statements as of any
date or for any period subsequent to October 21, 2000 were available;
and
(2) inquired of certain officials of the Company who have responsibility
for financial and accounting matters as to whether the unaudited
consolidated financial statements referred to under b.(1) are stated
on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement.
The foregoing procedures do not constitute an audit conducted in accordance
with auditing standards generally accepted in the United States. Also, they
would not necessarily reveal matters of significance with respect to the
comments in the following paragraph. Accordingly, we make no representations as
to the sufficiency of the foregoing procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing procedures
that caused us to believe that:
c. any material modifications should be made to the unaudited
consolidated financial statements described in 4.a.(1) above,
included in the Registration Statement, for them to be in
conformity with accounting principles generally accepted in the
United States,
d. the unaudited consolidated financial statements described in
4.a.(1) above do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
related rules and regulations adopted by the SEC; or
e. (i) at October 21, 2000, there was any change in the common
shares, increase in long-term debt or decrease in consolidated
net current assets or stockholders' equity of the consolidated
companies as compared with the amounts shown in the September 23,
2000 unaudited consolidated balance sheet included in the
Registration Statement; or (ii) for the period from September 24,
2000 to October 21, 2000, there was any decrease, as compared
with the corresponding period in the preceding year, in
consolidated net sales or in the total or per-share amounts of
consolidated net income.
6. As mentioned under 4.b. above, Company officials have advised us that
no consolidated financial statements as of any date or for any period subsequent
to October 21, 2000 are available; accordingly, the procedures carried out by us
with respect to changes in financial statement items after October 21, 2000
have, of necessity, been even more limited than those with respect to the
periods referred to in 4. above. We have inquired of certain officials of the
Company who have responsibility for financial and accounting matters as to
whether: (i) at December , 2000 there was any change in the common shares,
increase in long-term debt or any decreases in consolidated net current assets
or stockholders' equity of the consolidated companies as compared with the
amounts shown on the September 23, 2000 unaudited consolidated balance sheet
included in the Registration Statement, or (ii) for the period from
Annex A
September 24, 2000 to December , 2000, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated net sales
or in the total or per-share amounts of consolidated net income. On the basis of
these inquiries and our reading of the minutes as described in 4. above, nothing
came to our attention that caused us to believe that there was any such change,
increase, or decrease.
7. At your request, we have also read the items identified by you on the
attached copy of the Registration Statement (prospectuses), and have performed
the following procedures, which were applied as indicated with respect to the
symbols explained below:
a. Compared the dollar amounts either to the amounts in the audited
consolidated financial statements described in the introductory
paragraph of this letter or, for prior years, audited
consolidated financial statements for 1997, 1996 and 1995, or to
amounts in the unaudited consolidated financial statements
described in paragraph 3 above, to the extent such amounts are
included in or can be derived from such statements and found them
to be in agreement.
b. Compared the dollar and other amounts not derived directly from
audited or unaudited consolidated financial statements to amounts
in the Company's accounting records to the extent such amounts
could be so compared directly and found them to be in agreement.
c. Compared the dollar and other amounts not derived directly from
audited or unaudited consolidated financial statements, or that
could not be compared directly to the Company's accounting
records, to amounts in analyses prepared by the Company from its
accounting records and found them to be in agreement.
d. Proved the arithmetic accuracy of the percentages or amounts
based on the data in the above-mentioned financial statements,
accounting records, and analyses.
e. Computed the number of common shares to be outstanding after this
offering by totaling the number of common shares issued and
outstanding at September 23, 2000 appearing in the unaudited
consolidated financial statements at that date and the number of
common shares offered by the Company in the Registration
Statement as set forth under the caption "Common Shares Offered
By Us" on Page 4, and compared the computed amount to this
corresponding amount and found them to be in agreement.
We make no comment as to the appropriateness or completeness
of the Company's determination of the Regulation S-K
requirements for quantitative and qualitative disclosures
about market risks nor with respect to the reasonableness of
the assumptions underling the disclosures. We make no
representation as to whether the transaction will take place
or the
Annex A
number of shares to be sold in the transaction. We make no
legal representations as to questions of legal
interpretation regarding the completeness or appropriateness
of the Company's determination of what constitutes executive
compensation for purposes of the SEC disclosure requirements
on executive compensation.
8. Our audits of the consolidated financial statements for the periods
referred to in the introductory paragraph of this letter were comprised of audit
tests and procedures deemed necessary for the purpose of expressing an opinion
on such financial statements taken as a whole. For neither the periods referred
to therein nor any other period did we perform audit tests for the purpose of
expressing an opinion on individual balances of accounts or summaries of
selected transactions such as those enumerated above and, accordingly, we do not
express an opinion thereon.
9. It should be understood that we make no representations as to
questions of legal interpretation or as to the sufficiency for your purposes of
the procedures enumerated in the preceding paragraph; also, such procedures
would not necessarily reveal any material misstatement of the information
identified in 7. above. Further, we have addressed ourselves solely to the
foregoing data as set forth in the Registration Statement and make no
representations as to the adequacy of disclosure or as to whether any material
facts have been omitted.
10. This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their investigation of the
affairs of the Company in connection with the offering of the securities covered
by the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including, but not limited to, the registration, purchase, or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or any list of closing documents pertaining
to the offering of the securities covered by the Registration Statement.
Very truly yours,
/s/ Ernst & Young LLP
Annex A
