EXHIBIT 3.8
A MERGER AGREEMENT made on 15 June 2001
BETWEEN
OMNI INDUSTRIES LIMITED, a company incorporated under the laws of Singapore
whose registered office is at 0 Xxxxxx Xxxx, #00-00, Xxxxx Xxxxxx, Xxxxxxxxx
000000 (OMNI); and
CELESTICA INC., a corporation incorporated under the laws of the Province of
Ontario, Canada (CELESTICA).
WHEREAS:
Omni and Celestica (or a wholly-owned subsidiary of Celestica) propose to merge
by way of scheme of arrangement pursuant to Section 210 of the Companies Act, to
be proposed by Omni to its ordinary shareholders as described in the
Announcement (as defined below) and this Agreement. This agreement sets out
certain matters relating to the conduct of the proposed merger that have been
agreed to by Omni and Celestica.
IT IS HEREBY AGREED as follows:
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following expressions shall have the following
meanings:
AGREEMENT CONDITIONS has the meaning given in clause 4.2;
ANNOUNCEMENT means the announcement relating to the Scheme, substantially in the
form of Appendix 1;
BUSINESS DAY means any day on which banks are open for a full range of banking
business in Singapore and Toronto (excluding Saturdays);
CELESTICA SHARES means subordinate voting shares in the capital of Celestica;
COMPANIES ACT means the Singapore Companies Act, Chapter 50;
COMPETING PROPOSAL means a proposal by a third party involving (i) a sale or
other disposal of any direct or indirect interest in some or all of the Omni
Shares or the assets and undertakings of Omni (or any of them) (other than in
the ordinary and usual course of Omni's trading activities) (ii) a general offer
for Omni Shares or (iii) a scheme of arrangement involving Omni or the merger of
Omni with any other entity or any other transaction with respect to Omni Shares
or assets of Omni from any third party or (iv) any other arrangement having an
effect similar to any of (i) to (iii) above including a merger or amalgamation
proposal. For the purpose of this definition OMNI shall include any subsidiary
of Omni;
CONDITIONS means the Agreement Conditions and the Scheme Conditions;
CONFIDENTIALITY AGREEMENT means the letter of confidentiality from Celestica to
Omni delivered in February 2001;
COURT means the High Court of Singapore;
COURT MEETING means the meeting of the Omni Shareholders to be convened by the
Court to approve the Scheme;
COURT ORDER means the order of the Court sanctioning the Scheme under Section
210 of the Companies Act, confirming the transfer of the Omni Shares to
Celestica (or a wholly-owned subsidiary of Celestica) and approving financial
assistance, if any, pursuant to Section 76 of the Companies Act;
ENCUMBRANCE means any charge, mortgage, lien, hypothecation, judgement
encumbrance, title retention, preferential right, trust arrangement or other
security interest or other agreement or arrangement having a commercial effect
analogous to the conferring of security or similar right in favour of any
person;
EXCLUSIVITY AGREEMENT means the exclusivity agreement between Omni, the
Substantial Shareholder and Celestica dated 8 June 2001;
FINAL OPTION EXERCISE DATE means the date which is 4 Business Days prior to the
Record Date;
HSR ACT means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended;
IFA means the independent financial adviser appointed to advise the independent
directors of Omni in relation to the Merger and the Scheme;
IRREVOCABLE UNDERTAKINGS means the respective irrevocable undertakings to be
signed by each member of Management, Wuthelam and Koh Boon Hwee containing
undertakings to vote in favour of the resolution of Omni shareholders to be
proposed at the Court Meeting;
LISTING RULES means the listing rules of the SGX;
MANAGEMENT means XXXX Xxxxx Xxx, XXX Xxx Xxxx, SEOW Xxxx Xxxx, SIM Beng Chye and
TAN Chow Boon;
MERGER means the merger of Omni and Celestica (or a wholly-owned subsidiary of
Celestica) to be effected by way of the Scheme and on the terms and subject to
the conditions set out in this Agreement;
MERGER DATE means the date on which the Scheme becomes effective upon delivery
of the Court Order to the ROC;
MERGER REGULATION means Council Regulation (EC) 4064/89 as amended by Council
Regulation (EC) 1310/97;
NEW CELESTICA SHARES means new Celestica Shares to be issued in connection with
the Merger;
NEW CELESTICA TRANSACTION means a proposal by Celestica in relation to an offer,
scheme of arrangement or other arrangement or transaction to acquire all the
Omni Shares or the assets and undertakings of Omni (or any of them) and includes
any enhanced, revised or amended version of a New Celestica Transaction, in
respect of which Celestica has (i) publicly announced its intention to proceed
within 14 days of the date on which the relevant Competing Proposal was publicly
announced and (ii) commenced the New Celestica Transaction within 30 days of the
date on which the relevant Competing Proposal was publicly announced. For the
purposes of this definition a New Celestica Transaction shall be deemed to have
been COMMENCED on the date that a public announcement is made setting out all
material terms of the relevant transaction which confirms that Celestica has a
binding commitment to proceed with the New Celestica Transaction, whether
pursuant to the Takeover Code, the Companies Act, a merger agreement or a sale
and purchase agreement entered into with Omni or otherwise;
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NYSE means the New York Stock Exchange;
OMNI EMPLOYEE SHARE OPTION SCHEME means the employee share option scheme
approved by Omni Shareholders at the extraordinary general meeting of Omni on 2
September 1998;
OMNI GROUP means Omni and its subsidiaries;
OMNI OPTIONS means options granted by Omni under the Omni Employee Share Option
Scheme;
OMNI OPTIONHOLDERS means holders of Omni Options;
OMNI SHAREHOLDERS means the holders of the Omni Shares from time to time;
OMNI SHARES means ordinary shares of S$0.10 each in the capital of Omni;
RECORD DATE means the record date for participation in the Scheme;
REGULATORY APPROVALS means all authorisations, approvals, consents, clearances,
permissions or decisions which are required for the implementation of the
Scheme;
ROC means the Registry of Companies and Businesses in Singapore;
SCHEME means the scheme of arrangement to be proposed to the Omni Shareholders
pursuant to Section 210 of the Companies Act to effect the Merger, as described
in the Announcement (and includes any enhanced, revised or amended version
thereof);
SCHEME CONDITIONS has the meaning given in clause 4.1;
SCHEME DOCUMENT means the document to be sent to the Omni Shareholders in
connection with the implementation of the Merger, which will contain, inter
alia, details of the Scheme in terms agreed by the parties and the notice to
Omni Shareholders for the purposes of convening the Court Meeting;
SEC means the Securities and Exchange Commission;
SGX means the Singapore Exchange Securities Trading Limited;
SUBSIDIARY has the meaning given in the Companies Act;
TIMETABLE means the indicative timetable of events relating to the Scheme set
out in Appendix 2 and any revised timetable agreed by the parties in writing;
TSE means the Toronto Stock Exchange; and
WUTHELAM means Wuthelam Industries (S) Pte Ltd.
1.2 In this Agreement, unless the context otherwise requires:
(a) the headings are inserted for convenience only and shall not affect the
construction of this Agreement;
(b) references to PERSONS shall include individuals, bodies corporate
(wherever incorporated), unincorporated associations and partnerships;
and to PARTIES are to the parties to this Agreement;
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(c) words importing the singular include the plural (and vice versa), and
words indicating a gender include all genders;
(d) a reference to "US$" is to the lawful currency for the time being of
the United States and a reference to "S$" is to the lawful currency for
the time being of Singapore; and
(e) any thing or obligation to be done under this Agreement which requires
or falls to be done on a Business Day, shall be done on the next
succeeding Business Day, if the day upon which that thing or obligation
to be done falls on a day which is not a Business Day.
1.3 The Appendices comprise appendices to this Agreement and form part of
this Agreement.
ANNOUNCEMENTS
2.1 Immediately following the signature of this Agreement and the Irrevocable
Undertakings (or as soon as practicable thereafter), Celestica and Omni shall
procure the release of the Announcement. The obligations of the parties, other
than this clause 2.1, shall be conditional upon the release of the Announcement.
Each party confirms that its board of directors has approved the contents of and
release of the Announcement.
2.2 Except as required by law or any stock exchange or governmental or other
regulatory or supervisory body or authority of competent jurisdiction to whose
rules the party making the announcement or disclosure is subject, whether or not
having the force of law, no party shall make any further announcement or
disclosure (including the issue of any circular to shareholders and/or
optionholders of Omni or other public communication) concerning this Agreement,
the Merger or the Scheme without the prior approval of the other party. The
parties shall consult in respect of the terms, timing and manner of publication
of any documents (including but not limited to the Announcement and Scheme
Document) relating to the Merger and for the avoidance of doubt, Omni will
provide drafts of the Scheme Document to Celestica for comment and Celestica
shall be entitled to be represented by counsel at the Court hearings for
convening the Court Meeting and for the sanction of the Scheme.
MERGER
3.1 The Merger will be effected by way of the Scheme, the terms of which are set
out in this Agreement and the Announcement together with such other terms agreed
by both parties or as are required under applicable laws, regulations, rules and
codes.
3.2 All Omni Shares transferred to Celestica pursuant to the Scheme shall be
transferred free from Encumbrances and will have all rights now and subsequently
attaching to the Omni Shares, including the right to receive and retain all
dividends and other distributions declared, made or paid after the date of this
Agreement save that the Omni Shareholders will be entitled to retain the final
dividend of S$0.006 per Omni Share approved on 14 May 2001 which will be paid on
18 June 2001 to Omni Shareholders on the register at 8 June 2001.
3.3 Omni Optionholders shall be entitled to exercise Omni Options in accordance
with the terms of those options up to and including the Final Option Exercise
Date. Omni shall use its reasonable endeavours to procure that the Omni Options
shall not be exercisable from and including the Final Omni Option Exercise Date.
Arrangements are to be made pursuant to Rule 10.5 of the Omni Employee Share
Option Scheme such that on the Merger Date each Omni Option (including each
unvested Omni Option) that has not been exercised prior to the Merger Date will
continue in full force and effect from and after the Merger Date on the same
terms existing prior to such time (except as to the date on which the Omni
Options become exercisable, exercise period and termination, but subject to
clause 3.3(i)); (i) from and after the Merger Date, each such Omni Option shall
entitle its
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holder to purchase the number of Celestica Shares equal to the product of 0.045
and the number of Omni Shares subject to such Omni Option immediately prior to
such time for an exercise price per Celestica Share equal to the exercise price
per share of such Omni Option immediately prior to such time divided by 0.045
and shall be exerciseable at any time from the Merger Date up until and
including the date which is 60 days after the date of the hearing at which the
Court sanctions the Scheme; any such options which have not been exercised prior
to the expiry of such 60 day period shall automatically lapse and expire; and
(ii) Celestica will assume or undertake Omni's obligations under the Omni
Employee Share Option Scheme and will assume or be entitled to Omni's rights
thereunder, including the right to receive the exercise price upon the exercise
of Omni Options. If the foregoing calculations result in any Omni Option being
exercisable for a fraction of a Celestica Share, then the number of Celestica
Shares subject to such Omni Option shall be rounded down to the next whole
number. The Omni Employee Share Option Scheme shall, if practicable, be deemed
to be and shall be amended to give effect to the foregoing provisions of this
clause 3.3.
3.4 Subject to the fulfilment or waiver (as applicable) of the Conditions, the
registration of the copy of the Court Order with the ROC to give effect to the
Scheme in accordance with its terms shall take place as soon as practicable and
in any event within 15 Business Days after the date of grant of the Court Order
or by such other date as Omni and Celestica agree. Omni shall use its best
endeavours to register the Court Order in accordance with this clause 3.4 but
shall only do so if (i) each of the Conditions has been satisfied or, where
relevant, waived in accordance with the terms of this Agreement and (ii) this
Agreement has not been terminated pursuant to clause 10.
3.5 The parties intend that the record date for determining the Omni
Shareholders who will be entitled to submit elections to receive cash in respect
of all or any of their Omni Shares will be as set out in the Timetable. The
parties will consult to determine whether it would be advantageous for this
record date to be on an alternative date.
3.6 If the SEC fails to issue a no action letter permitting the Omni
shareholders in the United States to elect to receive any form of consideration
available in connection with the Scheme; Celestica may prohibit Omni
Shareholders resident in the United States from making elections as to the form
of consideration they are to receive under the Scheme and such shareholders
shall be eligible to receive consideration under the Scheme only in the form of
New Celestica Shares.
CONDITIONS
4.1 SCHEME CONDITIONS: The Scheme shall only become effective upon delivery of
the Court Order to sanction the Scheme to the ROC following fulfilment of the
following conditions:
(a) receipt of all applicable Regulatory Approvals and such approvals not
being revoked on or before the Merger Date;
(b) approval of the Scheme by a majority in number of the Omni Shareholders
present (in person or by proxy) and voting at the Court Meeting
representing not less than 75 per cent. in value of the Omni Shares in
respect of which votes are cast at the Court Meeting pursuant to
Section 210 of the Companies Act;
(c) the sanction of the Scheme and financial assistance, if any, involved
therein by the Court; and
(d) the conditions set out in clause 4.2 being satisfied or, if applicable
waived by the relevant party or parties specified in clause 4.4, and
this Agreement not being terminated in accordance with its terms.
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4.2 AGREEMENT CONDITIONS: Completion of the Merger on the Merger Date and the
delivery of the Court Order as referred to in clause 4.1, shall be conditional
upon the following conditions:
(a) no government or governmental, investigative or regulatory body or
court or any other similar person or body with competent jurisdiction
having taken, instituted, implemented or threatened any action,
proceeding, suit, investigation or enquiry, or enacted or made any
statute, regulation or order, or taken any similar step or imposed any
condition that would or might make the Scheme or the Merger or its
implementation illegal, void, unenforceable or in breach of any
condition imposed by any regulatory authority in or under the laws of
any jurisdiction;
(b) the approval for listing of the New Celestica Shares on the NYSE,
subject to official notice of issuance, and the TSE, subject to
Celestica filing customary documents with the TSE;
(c) the making of all necessary or appropriate notifications and filings
with, and the expiry or termination of all relevant waiting periods (or
extensions thereof) imposed by, competition, anti-trust or other
governmental or regulatory authorities in any jurisdiction in
connection with the implementation of the Merger, including, if
applicable the expiry or termination of all applicable waiting periods
(including any extension thereof) including under the HSR Act in the
United States; and if applicable, the European Commission having issued
a decision under Article 6(1)(b) of the Merger Regulation or being
deemed to have done so under Article 10(6) of the Merger Regulation;
and
(d) no indications having been received or expected from Xxx Xxx Xxxx or
Khaw Xxxxx Xxx or any two of the three other members of Management to
the effect that they have terminated or intend to terminate their
employment agreement with Celestica Asia Pte Ltd or otherwise not
perform their obligations thereunder.
4.3 The Scheme Conditions (other than the Scheme Condition specified in clause
4.1(d)) and the terms of the Merger specified in the Announcement shall only be
capable of amendment or waiver by the parties acting jointly.
4.4 Celestica and Omni, acting together, may waive all or any of the conditions
contained in clauses 4.2(a), (b) and (c) in whole or in part. Celestica has the
right to waive the condition contained in clause 4.2(d) in whole or in part.
4.5 Each of the parties shall use all reasonable endeavours to procure
satisfaction of the Conditions as soon as reasonably possible after release of
the Announcement and to procure that no event occurs or circumstance arises that
would prevent the Conditions from being fulfilled or would entitle either party
to terminate this Agreement pursuant to clause 10.
4.6 Each party will notify the other of any matter or circumstance that it
becomes aware of which might cause or result in (i) any of the Conditions to be
unfulfilled or incapable of fulfilment or (ii) either party having the right to
terminate this Agreement pursuant to clause 10, as soon as possible after
becoming aware of such matter or circumstance.
OMNI OBLIGATIONS
5. Omni hereby irrevocably undertakes with Celestica:
(a) to prepare and despatch as soon as reasonably practicable and to
use reasonable endeavours to procure the despatch in compliance with
the Timetable of (i) the Scheme Document and (ii) all other
announcements, advertisements or circulars which are necessary or
appropriate for the purposes of the Scheme and to use its best
endeavours to propose the resolutions
Page 6
referred to in clause 4.1(b) for approval by the Omni Shareholders at
the Court Meeting provided that in the event that a third party
publicly announces an intention to make, or the terms of, a Competing
Proposal at any time during the 10 Business Days prior to the date on
which it is expected that the Scheme Document is to be despatched as
stated in the Timetable, and if Celestica shall request, Omni shall
postpone the printing and despatch of the Scheme Documents until the
date of such despatch is agreed with Celestica which shall be no more
than 10 Business Days after such expected despatch date;
(b) as soon as reasonably practicable, to make such filings or assist
Celestica to make such filings with antitrust authorities or other
governmental or regulatory authorities in any jurisdiction as are
necessary or appropriate for implementation of the Merger, or with
respect to the acquisition of shares in, or control of Omni, or any of
its subsidiaries by Celestica following implementation of the Merger,
including without limitation (if applicable) under the Merger
Regulation and the HSR Act;
(c) to take all steps required by this Agreement or applicable laws and
regulations to be taken by it in relation to the Scheme and to use its
best endeavours to procure that the Scheme is implemented on the terms
set out in the Announcement and the Scheme Document and, as far as
reasonably practicable, in accordance with the Timetable, including,
without limitation, (i) seeking the dates for the relevant Court
hearings on an urgent basis, (ii) despatching the Scheme Document and
appropriate forms of proxy for use at the Court Meeting promptly
following approval thereof (where required) by the Court to all of its
shareholders and in accordance with the Timetable, (iii) in the event
of the Merger being approved by the requisite majority at the Court
Meeting, promptly applying to the Court for, and diligently seeking its
sanction of, the Scheme and (iv) in the event of the Court Order being
obtained, promptly delivering the same to the ROC for registration as
contemplated by this Agreement;
(d) to provide such assistance to Celestica as may reasonably be required
in connection with the Scheme and/or Merger and to use reasonable
endeavours to facilitate the consummation of the transactions
contemplated by this Agreement, the Merger or the implementation of the
Merger;
(e) from the date hereof until the Merger Date and to the extent
permitted by applicable laws and existing contractual arrangements with
third parties imposing confidentiality obligations, it will (i) give
Celestica and its advisers reasonable access, to the offices,
properties, books and records of the Omni Group, (ii) furnish to
Celestica and its advisers such information relating to the Omni Group
(including, without limitation, information relating to the assets,
business, financial position, liabilities, management, operations,
prospects and results of operations of the Omni Group) as Celestica and
its advisers may reasonably require and (iii) authorise and direct its
officers, employees, auditors, lawyers and other advisers to assist and
co-operate fully with Celestica, in each case for the purposes of
implementing and facilitating the Merger;
(f) from the date hereof until the Merger Date it will, and will procure
that each member of the Omni Group will, unless the prior written
consent of Celestica is given:
(i) carry on its business only in the ordinary and usual course
and to take all action reasonably necessary to preserve its
assets and not make any significant change in the current
business organisation of the Omni Group;
(ii) not declare, pay or make or propose the declaration, paying or
making of any dividend, bonus or other distribution other than
with respect to the final dividend of S$0.006 per Omni Share
to be paid on the 18 June 2001;
Page 7
(iii) not issue shares of any class or securities convertible into,
or rights, warrants or options to subscribe for, shares of
Omni or any other member of the Omni Group of any class or
such convertible securities (save for Omni Shares issued upon
exercise of Omni Options);
(iv) not, unless the consequences would not be considered material
in the context of the Omni Group taken as a whole:
(A) enter into any long term contract or commitment other
than in the ordinary and usual course of business;
(B) enter into any joint venture, partnership or
co-operation agreement;
(C) acquire or dispose of, or agree to acquire or dispose of
any business or any asset (including any shares in any
member of the Omni Group) having a value in excess of
US$15 million in respect of a single transaction or
US$50 million in aggregate in respect of all relevant
transactions by the Omni Group;
(D) create or agree to create any Encumbrance over any
assets (other than to secure indebtedness amounting in
aggregate to US$15 million or less), including shares in
any member of the Omni Group, or issue or agree to issue
any debentures or incur or increase any indebtedness or
contingent liability in excess of an aggregate amount of
US$50 million in respect of the Omni Group;
(E) enter into any contract or commitment which may result
in a material change in nature or scope of the
operations of the Omni Group or may result in
expenditure in excess of US$15 million in respect of a
single transaction or US$50 million in aggregate in
respect of all relevant contracts or commitments by the
Omni Group; or
(F) modify or amend or terminate, any agreement, contract
arrangement or transaction or agree to any variation of
any existing contract to which that relevant member of
the Omni Group is a party in each case in any material
respect,
provided that nothing in this clause 5(f) shall prevent the undertaking
or implementation of any matter or transaction that has been publicly
announced to the SGX prior to the date of this Agreement;
(g) to obtain all Regulatory Approvals and other permissions and consents
necessary or appropriate to ensure that as a result of the Merger or
the Scheme or its implementation:
(i) no indebtedness of any Omni Group Member (other than
indebtedness amounting in aggregate to US$5 million or less)
becomes immediately repayable and no Encumbrance over any part
of the business, property or assets of any members of the Omni
Group (other than in relation to indebtedness amounting in
aggregate to US$5 million or less) becomes enforceable; and
(ii) no agreements, licence, permit or other arrangement material
to the business of the Omni Group is terminated or adversely
modified;
Page 8
(h) to identify all "affiliates" of Omni within the meaning of Rule 145
promulgated under the Securities Xxx 0000 of the United States as at
the Record Date and to use its reasonable endeavours to procure that
any such person, each member of Management, Wuthelam and Koh Boon Hwee
each execute a letter substantially in the form set out in Appendix 3;
(i) to use reasonable endeavours to ensure that its Auditors confirm in
writing prior to the date of the Scheme Document that the arrangements
agreed to by the parties under clause 3.3 in respect of the Omni
Optionholders is fair and reasonable and if such confirmation is not
obtained prior to the date of the Scheme Document, to use all
reasonable endeavours to implement an alternative arrangement for the
treatment of Omni Optionholders in accordance with Celestica's
instructions; and
(j) in the event that a Competing Offer has been publicly announced and
Celestica publicly announces a New Celestica Transaction on terms such
that the value of the consideration per Omni Share is equal to or in
excess of the value of the consideration per Omni Share available under
such Competing Proposal, to use its best endeavours to ensure that the
Omni Board recommends such New Celestica Transaction to the Omni
Shareholders.
CELESTICA OBLIGATIONS
6. Celestica hereby irrevocably undertakes with Omni:
(a) to apply to the SEC for a no-action letter, enabling an Omni
shareholder in the United States to elect to receive any form of
consideration pursuant to the Scheme;
(b) to apply for the listing on the TSE and on the NYSE of the New
Celestica Shares and from time to time file with the TSE, the NYSE and
any other securities regulators such other documents as are necessary
for implementation of the Merger;
(c) as soon as reasonably practicable, to make such filings or assist Omni
to make such filings with competition, or other governmental or
regulatory authorities in any jurisdiction as are necessary or
appropriate for implementation of the Merger, or with respect to the
acquisition in, or control of, Omni or any of its subsidiaries by
Celestica following implementation of the Merger, including without
limitation (if applicable) under the Merger Regulation and HSR Act;
(d) to provide such assistance to Omni as may reasonably be required in
connection with the Merger including co-operating in relation to the
preparation of the Scheme Document and the preparation by the IFA of
its recommendation;
(e) without prejudice to Omni's right to terminate the Agreement pursuant
to clause 10.1, to take all steps required by this Agreement or
applicable laws and regulations to be taken by it in relation to the
Scheme and use its best endeavours to procure that the Scheme is
implemented on the terms set out in the Announcement and to be set out
in the Scheme Document and in accordance with the Timetable;
(f) if the Auditor does not confirm in writing prior to the date of the
Scheme Document that the arrangement with the Omni Optionholders
proposed in clause 3.3 are fair and reasonable, to use all reasonable
endeavours to agree with Omni an alternative arrangement for the
treatment of Omni Optionholders and implement such arrangement; and
(g) as far as reasonably practicable, to make arrangements to facilitate
the trading of New Celestica Shares by minority Omni Shareholders in
line with usual market practice in Singapore at reasonable cost to such
Omni Shareholders.
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REPRESENTATIONS AND WARRANTIES
7.1 Omni represents and warrants to Celestica that:
(a) Omni is validly existing under the laws of Singapore and has obtained
all corporate authorisations and all other applicable governmental,
statutory, regulatory or other consents, licences, authorisations,
waivers or exemptions required to empower it to enter into and perform
its obligations under this Agreement; and
(b) this Agreement, when duly executed, will constitute legal, valid and
binding obligations of Omni and the execution, delivery and performance
by Omni of this Agreement does not contravene or constitute a default
or breach under any provision of applicable law or regulation or of,
where applicable, Omni's Memorandum and Articles of Association or any
judgement, injunction, order, decree, material agreement or material
instrument binding upon Omni.
7.2 Celestica represents and warrants to Omni that:
(a) Celestica is validly existing under the laws of the Province of Ontario
and has obtained all corporate authorisations and all other applicable
governmental, statutory, regulatory or other consents, licences,
authorisations, waivers or exemptions required to empower it to enter
into and perform its obligations under this Agreement;
(b) this Agreement, when duly executed, will constitute legal, valid and
binding obligations of Celestica and the execution, delivery and
performance by Celestica of this Agreement does not contravene or
constitute a default or breach under any provision of applicable law or
regulation or of, where applicable, Celestica's articles or any
judgement, injunction, order or decree binding upon Celestica;
(c) the unissued Celestica Shares to be issued by Celestica to the Omni
Shareholders pursuant to the Scheme have been duly and validly
authorised and, when issued and delivered in exchange for any Omni
Shares pursuant to the Scheme will be duly and validly issued as fully
paid and non-assessable shares in the capital of Celestica and when
held by persons who are not "affiliates" (as such term is defined in
rules promulgated under the Securities Xxx 0000 of the United States)
or "control persons" (for the purposes of applicable Canadian
securities legislation) will be freely tradeable in accordance with the
rules of the NYSE and TSE, without restriction on transfer or re-sale
under United States or Canadian securities laws subject to generally
applicable anti-fraud, xxxxxxx xxxxxxx restrictions, registration and
other non-prospectus requirements of general application relating to
the sale of shares and in the case of persons who are "affiliates" of
Omni, compliance with rule 145(d) promulgated under the Securities Xxx
0000 of the United States;
(d) from the date of the Announcement until the earlier of the Merger Date
or the date on which it is publicly announced that the Merger and/or
the Scheme will not proceed, Celestica will continue to carry on its
business only in the ordinary and usual course provided that this shall
not preclude any acquisition, disposal, amalgamation, merger,
restructuring, re-financing, capital raising or similar transaction
other than a transaction which would involve a substantial
participation by Celestica in a business sector other than the
electronics manufacturing services sector or a related manufacturing or
services industry.
7.3 Omni represents and warrants to Celestica that as at the date of this
Agreement (save as publicly announced by Omni or disclosed by Omni in
writing to Celestica on or prior to the date of this Agreement), no
member of the Omni Group has, since 31 December 2000:
Page 10
(i) issued shares of any class, or securities convertible into, or
rights, warrants or options to subscribe for or acquire, any
such shares or convertible securities (save for Omni Options
granted prior to the date of this Agreement, and any shares
issued upon exercise of any Omni Options);
(ii) acquired or disposed of, or agreed to acquire or dispose of,
any assets or shares which is material in the context of the
Omni Group taken as a whole;
(iii) entered into (A) any contract, transaction or commitment of a
long term or unusual or onerous nature which is material in
the context of the Omni Group taken as a whole (other than in
the ordinary and usual course of business) or (B) any
partnership, co-operation arrangement or joint venture; or
(iv) incurred or increased any indebtedness or contingent liability
of an aggregate amount which might materially and adversely
affect the Omni Group taken as a whole.
7.4 Each party represents and warrants to the other that, save as publicly
announced by the relevant party or disclosed by the relevant party to the other
prior to the date of this Agreement, as at the date of signature of this
Agreement it and its subsidiaries have complied with all applicable laws and
regulations of all relevant security regulatory authorities and stock exchanges
including but not limited to those requiring the filing or disclosure of
financial, business or other information.
7.5 Each party will promptly disclose to the other all relevant information
which comes to its attention in relation to any fact or matter (whether existing
on or before the date of this Agreement or ensuing afterwards) which could
reasonably be expected to constitute a breach of any of the warranties set out
in this clause 7 if repeated on or at any time prior to the Merger Date by
reference to the fact and circumstances then existing or which would reasonably
be expected to constitute (i) a breach of any of Omni's obligations under clause
5 or (ii) a right to terminate this Agreement by either party pursuant to clause
10 as soon as possible after becoming aware of such fact or matter.
INFORMATION
8.1 Each of the parties shall, upon reasonable notice, provide the other with
such information as such other party may reasonably require in connection with
the Merger and as it is reasonably able (subject to any obligation of
confidentiality) to disclose.
8.2 Each party undertakes to the other that none of the information supplied by
it or on its behalf and which is included in the Announcement or any other press
announcement relating to the Merger, the Scheme Document or any other document
to be issued to Omni Shareholders or otherwise made public in connection with
the Merger contains and/or will contain any untrue statement of a material fact
or any opinion or omits and/or will omit to state any material fact or opinion
required to be stated therein or necessary to make the statements therein not
misleading.
NON-SOLICITATION
9.1 Omni represents and warrants that all negotiations and other communications
between, on the one hand, it or any member of the Omni Group and any of its or
their respective directors, employees, and its current advisers in relation to
the Merger, and, so far as it is aware of their activities or is able to
influence them, its agents, advisers or representatives and, on the other, any
party (other than Celestica) in respect of any approach, proposal or offer in
relation to Omni or to its assets and undertakings (or any of them) (other than
in the ordinary and usual course of Omni's trading activities), whenever
received, have been discontinued.
Page 11
9.2 Omni undertakes to Celestica that prior to the earlier of the Merger Date
and the end of the period referred to in clause 9.3, neither it nor any of its
subsidiaries (nor any of its or their respective directors or employees or its
current advisers in relation to the Merger), and it will procure that, so far as
it is aware of their activities or is able to influence them, none of its or
their respective advisers, agents or representatives shall directly or
indirectly:
(a) encourage (other than if permitted under clause 9.2(c)) or solicit or
initiate the submission of proposals or offers from any person (other
than Celestica) in relation to a Competing Proposal (other than
Celestica);
(b) enter into, continue or otherwise participate in any discussions or
negotiations or respond to any indications of interest, or otherwise
communicate (except to the extent required by applicable laws or the
regulations of the SGX or the Singapore Takeover Code) with any person
(other than Celestica and its directors, employees, advisers, agents or
representatives) approve or recommend or enter into any agreement or
arrangement in relation to a Competing Proposal; or
(c) except to the extent that there is an obligation to do so under the
Singapore Takeover Code or to the extent required by applicable laws or
the regulations of the SGX, provide information to any person (other
than Celestica and its directors, employees, advisers, agents or
representatives) in response to, or otherwise co-operate with, assist
or participate in, any approach, proposal or offer (including, without
limitation, taking any action to assist any person in obtaining any
regulatory consents or approvals in connection with such proposal or
offer) in relation to any direct or indirect interest in the Omni
Shares or the assets and undertakings of Omni (or any of them) other
than any which is not in the ordinary and usual course of Omni's
trading activities and is permitted under clause 5(f),
provided that nothing in this clause 9.2 shall prevent Omni from completing any
sale of assets that has been publicly announced and to which a public
announcement has been made to the SGX prior to the date of this Agreement. This
clause 9.2 shall survive termination of this Agreement.
9.3 Omni undertakes to Celestica it will promptly notify Celestica of all
offers, indications of interest or other communications from any person relating
to a Competing Proposal received prior to the end of the period of 30 days from
the later of the date of termination of this Agreement and the date on which it
becomes reasonable to expect that the Scheme (or any enhanced, revised or
amended version thereof) or any New Celestica Transaction (if any has been
proposed by Celestica) will not proceed. Such notification shall include the
identity of the relevant person making such offer, indications of interest or
communication and specific details of the terms thereof. This clause 9.3 shall
survive termination of this Agreement.
TERMINATION
10.1 This Agreement may be terminated as follows and all obligations of the
parties hereunder (save under clauses 9.2, 9.3, 10.2 and 10.3 and 11) shall
cease forthwith:
(a) by an agreement in writing between Celestica and Omni made at any time
prior to the Merger Date;
(b) by Celestica giving written notice to Omni in the event that:
(i) the IFA fails to consent to the inclusion of a recommendation
by it of the Scheme in the Scheme Document or the Omni Board
(to the extent that each member is permitted to give such
recommendation) fails to consent to the inclusion in the
Scheme Document of a recommendation by it (unqualified other
than by reference to
Page 12
any qualifications or assumptions referred to in the IFA's
recommendation) to the Omni Shareholders to vote in favour of
the Scheme;
(ii) a Competing Proposal has been publicly announced on terms such
that the value of the consideration per Omni Share is greater
than the value of the consideration per Omni Share available
under the Scheme;
(iii) a Competing Proposal has been publicly announced and a New
Celestica Transaction has subsequently been publicly announced
which is on terms such that the value of the consideration per
Omni Share is equal to or in excess of the value of the
consideration per Omni Share available under such Competing
Proposal and the Omni Board (to the extent that each member is
permitted to give such recommendation) fails to recommend, or
withdraws or adversely modifies its recommendation of, such
New Celestica Transaction to Omni Shareholders;
(iv) any of the representations and warranties given in clause 7.1
or 7.3 by Omni is untrue or misleading in any material respect
as at the date of this Agreement or the representations and
warranties given in clause 7.1 by Omni would be untrue or
misleading in any material respect if repeated on, or at any
time prior to, the Merger Date by reference to the facts and
circumstances then existing;
(v) there is a material breach by Omni of its obligations under
clause 5(f) or 5(g) or clause 9.2 or 9.3;
(vi) other than as publicly disclosed to the SGX before the date
of this Agreement, there has occurred in the period commencing
on 1 January 2001 and ending on (and including) the Merger
Date any change, event or occurrence which has or any changes,
events or occurrences which taken together have an adverse
effect on the business, operations (including results of
operations), assets, properties or condition (financial or
otherwise) of the Omni Group, that results in a material
diminution in the value of the assets, business or undertaking
of the Omni Group, but excluding any change, event or
occurrence that is reasonably attributable to (i) the economy
(including a slowdown of the economy) or securities markets in
general; (ii) the transactions contemplated hereby or the
announcement thereof; or (iii) conditions relating to the
electronics manufacturing services industry generally; or
(vii) any information or financial statements which Omni omitted to
release publicly which ought to have been so released, or any
inaccuracy or omission in information or financial statements
publicly released by Omni, in each case in compliance or
purported compliance with the laws of Singapore or the Listing
Rules, would, if corrected or published as applicable, imply
that the value of the assets, business or undertaking of the
Omni Group is lower than the value implied by reference to the
publicly released information;
(c) by a party which is entitled to waive a condition (whether alone or
jointly) provided that no act or omission of that relevant party has
resulted in the relevant Condition being or becoming incapable of
satisfaction by giving written notice to the other party if any such
Condition shall be or becomes incapable of satisfaction;
(d) by either party by giving written notice to the other party if all the
Conditions shall not have been satisfied or waived (as the case may be)
on or prior to the date which is six months from the date of this
Agreement or such later date as Celestica and Omni may agree; or
Page 13
(e) by Omni giving written notice to Celestica in the event that any
representations and warranties given in clause 7.2 by Celestica is or
becomes untrue or misleading in any material respect as at the date of
this Agreement or would be untrue or misleading in any material respect
if repeated on, or at any time prior to, the Merger Date by reference
to the facts and circumstances then existing.
10.2 Termination of this Agreement shall be without prejudice to the rights of
any person which have arisen prior to termination, including (without
limitation) any claim in respect of a breach of this Agreement. This clause 10.2
shall survive termination of this Agreement.
10.3 In the event that this Agreement is terminated by either party pursuant to
clause 10.1, Omni shall not register the Court Order or take any other action to
implement the Scheme. This clause 10.3 shall survive any termination of this
Agreement.
MISCELLANEOUS
11.1 Save as otherwise provided herein, each party shall pay its own
expenses incidental to this Agreement and the Merger.
11.2 Notices under this Agreement shall be given in writing by personal delivery
or recorded delivery mail or by facsimile transmission. It shall be served by
sending it by fax to the number set out in clause 11.3, or delivering it by
hand, or sending it by pre-paid recorded delivery, special delivery or
registered post, to the address set out in clause 11.3 and in each case marked
for the attention of the relevant party set out in clause 11.3 (or as otherwise
notified from time to time in accordance with the provisions of clause 11.3).
Any notice so served by hand, fax or post shall be deemed to have been duly
given (i) in the case of delivery by hand, when delivered; (ii) in the case of
fax, at the time of transmission; and (iii) in the case of prepaid recorded
delivery, special delivery or registered post, at 5pm on the fifth Business Day
following the date of posting; provided that in each case where delivery by hand
or by fax occurs after 6pm on a Business Day or on a day which is not a Business
Day, service shall be deemed to occur at 9am on the next following Business Day.
References to time in this clause are to local time in the country of the
addressee.
11.3 The addresses and fax numbers of the parties for the purpose of clause
11.2 are as follows:
(a) if to Celestica:
Address: Celestica Inc.
00 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxx Xxxx, Senior Vice-President, Mergers &
Acquisitions
Facsimile: x0 000 000 0000
(b) if to Omni:
Address: Omni Industries Limited
00 Xxxxxxxxx Xxxxx Xxxxxx 0
#00-00
Xxxxxxxxx 000000
Attention: Xxx Xxx Xxxx
Page 14
Facsimile: x00 000 0000
A party may notify the other party to this Agreement of a change to its
name, relevant addressee, address or fax number, provided that, such
notice shall only be effective on:
(a) the date specified in the notice as the date on which the
change is to take place; or
(b) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date following five Business Days after notice of any
change has been given.
11.4 The provisions of this Agreement shall not survive completion of the
Merger, unless otherwise specified. Clauses 9.2, 9.3, 10.2, 10.3 and 11 shall
survive termination of this Agreement and completion of the Merger.
11.5 This Agreement may be modified or amended only by written agreement of the
parties.
11.6 This Agreement and the letter signed by the parties in the form attached as
Appendix 3 constitutes the entire agreement between the parties and supersedes
all other agreements, understandings, representations and warranties between the
parties with respect to the subject matter hereof (other than the
Confidentiality Agreement, which shall remain in full force and effect). The
rights and obligations of the parties under this Agreement shall not be
assignable.
11.7 Each of the parties agrees that, in addition to any remedies specifically
provided for herein, the parties shall be entitled to all other remedies at law
or equity to the extent permitted by applicable law.
11.8 This Agreement may be executed by the parties on separate counterparts,
each counterpart constituting an original copy of this Agreement, but the
counterparts shall together constitute one and the same agreement.
11.9 This Agreement and the Merger shall be governed by and construed in
accordance with the laws of Singapore. The parties hereby submit to the
non-exclusive jurisdiction of the courts of Singapore.
Page 15
AS WITNESS this Agreement has been signed on behalf of the parties the day and
year first before written.
SIGNED by Xxx Xxx Xxxx )
for and on behalf of )
OMNI INDUSTRIES LIMITED )
in the presence of: )
SIGNED by Xxxxx Xxxx, Senior Vice President, )
Mergers & Acquisitions )
for and on behalf of )
CELESTICA INC. )
in the presence of: )
Page 16
APPENDIX I
ANNOUNCEMENT
Page 17
ANNOUNCEMENT
---------------------------------------------------------------------------------------------------------------
OMNI INDUSTRIES LIMITED CELESTICA INC.
(Incorporated in the Republic of Singapore) (Incorporated under the laws of the Province of
Ontario, Canada)
---------------------------------------------------------------------------------------------------------------
PROPOSED ACQUISITION OF OMNI INDUSTRIES LIMITED BY
CELESTICA INC.
INTRODUCTION
Omni Industries Limited ("Omni") and Celestica Inc. ("Celestica") are pleased to
announce that they have today entered into a merger agreement ("Merger
Agreement") for a proposed merger ("Merger") by way of a scheme of arrangement
involving the acquisition by Celestica of all the ordinary shares of S$0.10 each
in the capital of Omni ("Omni shares").
THE PROPOSED SCHEME
Pursuant to the terms of the Merger Agreement, Omni will propose a scheme of
arrangement under Section 210 of the Singapore Companies Act, Chapter 50 to its
shareholders for the transfer of their Omni shares to Celestica or a wholly
owned subsidiary of Celestica ("Scheme").
Omni shareholders will be entitled to receive 0.045 subordinate voting shares of
Celestica ("Celestica shares") for each Omni share transferred under the Scheme.
Omni shareholders will be able to elect to receive cash (instead of Celestica
shares) in respect of some or all of their Omni shares on the basis of S$4.25
for each Omni share transferred under the Scheme. However, the total cash
available for the cash election is limited to S$860 million. Accordingly, if
Omni shareholders were to elect to receive more cash than is available, their
cash elections would be pro-rated so that a maximum of S$860 million cash is
paid by Celestica. As a result, Omni shareholders who make the cash election in
respect of some or all of the consideration received under the Scheme may not
know the exact amount of cash or Celestica shares they will receive until
settlement of the consideration under the Scheme. However, the cash election
ensures that an Omni shareholder can receive at least 50% of his consideration
in cash, based on Celestica's closing share price of US$45.71 as of 13 June
2001. The Scheme values the shares of Omni at S$1.6 billion assuming full take
up of the cash election, based on the same Celestica closing price.
Omni shareholders who fail to make an election as to the form of consideration
they wish to receive or who are not permitted to make an election due to the
securities laws of the jurisdiction in which they reside will receive
consideration in the form of Celestica shares only.
All Omni shares transferred to Celestica pursuant to the Scheme shall be
transferred free from encumbrances and security interests and with all rights
attaching to them, including the right to receive and retain all dividends and
other distributions declared, made or paid after the date of the Merger
Agreement save that the Omni shareholders will be entitled to retain the final
dividend of S$0.006 per Omni share approved on 14 May 2001 which will be paid on
18 June 2001 to Omni shareholders on the register at 8 June 2001.
Following the Scheme becoming effective, Omni will become a wholly-owned
subsidiary of Celestica and its ordinary shares, at present listed and quoted on
the Singapore Exchange Securities Trading Limited ("SGX-ST"), will be delisted
from the Official List.
It is currently expected that the Scheme Documentation will be despatched to
Omni shareholders by the end of August 2001 and that the Scheme will be
implemented early in the fourth quarter, subject to the satisfaction of
procedural requirements.
Page 18
OPTIONHOLDERS
Appropriate arrangements will be made for optionholders. Further details of the
proposed arrangements for optionholders will be included in the Scheme
documentation and will be sent to optionholders in due course.
RATIONALE FOR SCHEME/BENEFITS OF TRANSACTION
After the Merger, the combined company will have an increased global presence,
expanded customer base and enhanced product offerings.
Omni's strong Asian presence will greatly contribute to strengthening the
combined company's foundation in Asia. Omni's strong management team will be key
in driving the combined company's growth initiatives in the Asian region. The
Merger will provide additional customers to the company and expand relationships
with existing customers. It will also diversify the company's product mix and
provide the company with access to world-class high-precision plastic component
capabilities.
The Merger will enable Omni to realise its objectives of becoming a premier
global player in the electronics manufacturing industry and benefit from the
relatively higher valuations enjoyed by the larger global electronics
manufacturing companies. Omni will enjoy a broader and more diverse product and
customer base. Following the Merger, Omni will be part of a group with increased
operations, greater sales and expanded economies of scale.
SCHEME PRICING
The table below, which is for illustrative purposes only, shows the value that a
holder of 1,000 Omni shares would receive under the Scheme on the basis that the
shareholder makes (i) no election for cash and (ii) elects for cash in respect
of all his shares, based on the closing prices of Celestica shares on 13 June
2001 and the average of the closing prices of the 20 trading days ending on 13
June 2001 and the premium over the Omni share price on the same bases. The
figures below are based on a currency exchange rate of US$1 = S$1.81 for
illustrative purposes.
VALUE OF CONSIDERATION FOR 1,000 OMNI SHARES
-------------------------------------------------------- ------------------------ -------------------------------
BASED ON THE BASED ON THE AVERAGE
CLOSE OF OF THE 20 TRADING DAYS
BUSINESS ON ENDING 13 JUNE 2001
13 JUNE 2001
-------------------------------------------------------- ------------------------ -------------------------------
(i) NO CASH ELECTION S$3,723 S$4,360
-------------------------------------------------------- ------------------------ -------------------------------
PREMIUM 19% 51%
-------------------------------------------------------- ------------------------ -------------------------------
(ii) CASH ELECTION
-------------------------------------------------------- ------------------------ -------------------------------
a) Receive 100% Cash S$4,250 S$4,250
-------------------------------------------------------- ------------------------ -------------------------------
PREMIUM 36% 48%
-------------------------------------------------------- ------------------------ -------------------------------
....................b) Receive Minimum Cash (Note) S$3,981 S$4,306
-------------------------------------------------------- ------------------------ -------------------------------
PREMIUM 28% 49%
-------------------------------------------------------- ------------------------ -------------------------------
NOTE: THE MINIMUM CASH THAT A HOLDER OF 1,000 OMNI SHARES WOULD RECEIVE IF
HE ELECTED IN FULL TO RECEIVE CASH AND ALL OTHER OMNI SHAREHOLDERS (AFTER
THE EXERCISE OF ALL OPTIONS) ELECTED IN FULL TO RECEIVE CASH IS S$2,078,
AFTER BEING PRO-RATED. IN ADDITION, THE HOLDER OF 1,000 OMNI SHARES WOULD
RECEIVE 23 CELESTICA SHARES.
VOTING UNDERTAKINGS
Koh Boon Xxxx, Xxx Xxx Xxxx, Khaw Xxxxx Xxx, Sim Beng Chye, Tan Chow Boon, Seow
Xxxx Xxxx and Wuthelam Industries (S) Pte Ltd, who own or control approximately
32% of the total issued Omni
Page 19
shares as of this date, have given Omni and Celestica irrevocable undertakings
to support the Scheme and to vote all of their Omni shares and any other Omni
shares they may receive in favour of the Scheme.
FINANCIAL HIGHLIGHTS OF CELESTICA AND OMNI
For the financial year ended 31 December 2000, based on audited financial
statements, the Celestica group recorded a turnover of S$17,651 million, an
adjusted net earnings of S$550 million and a net profit after tax of S$375
million. As of 31 December 2000, its total assets amounted to S$10,748 million
and its total liabilities amounted to S$4,469 million, whilst its net tangible
assets were S$5,233 million. The above figures are based on a currency exchange
rate of US$1 = S$1.81 for illustrative purposes.
For the financial year ended 31 December 2000, based on audited financial
statements, the Omni group recorded a turnover of S$1,684 million, a profit
before tax of S$63 million and a profit after tax but before minority interest
and extraordinary items of S$50 million. As of 31 December 2000 its total assets
amounted to S$744 million and its total liabilities amounted to S$543 million
whilst its net tangible assets were S$193 million.
APPROVALS AND CONDITIONS OF THE SCHEME
The Securities Industry Council has confirmed that the Singapore Code on
Takeovers and Mergers will not apply to the Scheme.
The completion of the Merger is conditional upon a number of conditions being
satisfied and the non-occurrence of certain relevant events. Further details of
these are set out in the Appendix to this announcement.
INTEREST OF DIRECTORS AND SUBSTANTIAL SHAREHOLDERS OF OMNI
In connection with the Scheme, Xxx Xxx Xxxx, Khaw Xxxxx Xxx, Sim Beng Chye, and
Tan Chow Boon will be entering into employment contracts with a subsidiary of
Celestica.
Save as disclosed, no other substantial shareholder or director of Omni has any
interest in the Scheme (other than by reason only of being a shareholder or
director of Omni).
INDEPENDENT FINANCIAL ADVISER TO OMNI
Omni has appointed ANZ Singapore Limited ("ANZ Investment Bank") to act as
independent financial advisor to the independent directors of Omni in connection
with the Scheme. Based on its preliminary review of the Scheme as of the date
hereof, ANZ Investment Bank is of the opinion that the terms of the Scheme are
fair, reasonable and are not prejudicial to the interests of the shareholders of
Omni from a financial point of view. ANZ Investment Bank will issue its formal
opinion following a full review of the financial terms of the Scheme which will
be carried out prior to the despatch of the Scheme Document.
INDEPENDENT DIRECTORS OF OMNI
The directors of Omni who are considered to be independent for the purposes of
the Scheme are Koh Boon Hwee, Goh Hup Jin, Chua Soo Tian and Xxxxxx Xxxx Xxxx
Xxxx (the "Independent Directors"). The Independent Directors have carefully
considered the terms of the Scheme and the preliminary opinion of ANZ Investment
Bank and are of the unanimous opinion that the terms of the Scheme are fair,
reasonable and not prejudicial to the interests of the shareholders of Omni and
as of the date hereof recommend that the Omni shareholders vote in favour of the
Scheme.
Page 20
FINANCIAL ADVISERS TO OMNI AND CELESTICA
Omni has appointed Xxxxxx Xxxxxxx to act as its financial advisor in connection
with the Merger. Celestica has appointed Credit Suisse First Boston to act as
its financial advisor in connection with the Merger.
DESPATCH OF SCHEME DOCUMENT
Omni will despatch a Scheme Document containing further information on the terms
of the Scheme, listing particulars in relation to the Celestica shares and a
notice of the meeting to approve the Scheme as soon as practicable. Shareholders
are advised to exercise caution when trading in Omni shares until they receive
the Scheme Document.
ABOUT CELESTICA
Celestica is a Canadian-based leading provider of electronics manufacturing
services, or EMS, to original equipment manufacturers, or OEMs, worldwide.
Celestica is the third largest EMS provider in the world. Celestica has
operations in the United States, Canada, Mexico, United Kingdom, Ireland, Italy,
Thailand, China, Hong Kong, Czech Republic, Brazil, Singapore, Malaysia and
Japan. Celestica provides a variety of products and services to its customers,
including manufacture, assembly and testing of complex printed circuit
assemblies and full system assembly of final products. In addition, Celestica
provides a wide range of EMS services from product design to worldwide
distribution and after-sales support.
The authorised capital of Celestica consists of an unlimited number of
subordinate voting shares, an unlimited number of multiple voting shares and an
unlimited number of preference shares. As of 13 June 2001, 177,164,115
subordinate voting shares, 39,065,950 multiple voting shares and no preference
shares were outstanding. Celestica's subordinate voting shares are listed on the
New York and Toronto stock exchanges. As of 13 June 2001, the market
capitalization of Celestica's subordinate and multiple voting shares was
approximately S$17,890 million. The above figures are based on a currency
exchange rate of US$1 = S$1.81 for illustrative purposes.
ABOUT OMNI
Omni provides electronics manufacturing services ranging from the initial stage
of product design and development, to plastics injection mold fabrication and
molding, through to contract manufacturing and final product assembly in the
electronics manufacturing services. It is also involved in the trading and
distribution of electronic components and computer peripherals. Omni also
provides the semiconductor industry with design and manufacturing of equipment
and design and manufacture of organic substrates. Presently, Omni has
manufacturing facilities and sales offices located in Singapore, Malaysia,
China, Thailand, Indonesia, Mexico and the US. Omni, through its subsidiaries,
provides a one-stop manufacturing service for global OEM in the computer and
computer peripheral, telecommunications, electronics and semiconductor
industries.
Omni is based in Singapore and is listed on the SGX-ST. As of 31 December 2000,
Omni has an authorized share capital of S$50 million divided into 500,000,000
ordinary shares of S$0.10 each and an issued and paid-up share capital of
approximately S$39 million divided into 392,984,800 ordinary shares of S$0.10
each. As of 13 June 2001 Omni's market capitalization was S$1,233 million.
15 June 2001
-------------------------------------------------------------------------------
By order of the Board By order of the Board
Omni Industries Limited Celestica Inc.
Xxxxxxx Xxx Xxxxx How Xxxxxxxxx Del Xxxxxx
Company Secretary Vice President & General Counsel
-------------------------------------------------------------------------------
Page 21
APPENDIX
The completion of the Merger is conditional upon a number of conditions becoming
satisfied and non-occurrence of any of the relevant events, which include:
CONDITIONS
o the receipt of all applicable regulatory and such approvals not being
revoked before the Merger Date;
o the approval of the Scheme by the Omni shareholders at the Court
Meeting in accordance with Section 210 of the Companies Act,
Chapter 50;
o the approval of the Scheme by the Court;
o the listing of the New Celestica Shares on the New York and Toronto
Stock Exchanges; and
o no indications having been received or expected from certain key
members of management that they have terminated or intend to terminate
their respective employment agreements with Celestica.
Each of these conditions must be satisfied within 6 months from the date of the
Merger Agreement.
RELEVANT EVENTS
Celestica may choose not to proceed with the Merger if any of the following
relevant events occurs before the effective date of the Scheme:
o a material breach by Omni of its pre-merger obligations or
representations and warranties;
o a change having an adverse effect on the business, operations, assets,
properties or condition of the Omni group of companies that results in
a material diminution in value of the Omni group of companies other
than reasonably attributable to the economy or markets in general or
conditions relating to the electronics manufacturing services or the
transactions contemplated by the Merger Agreement or the announcement
thereof;
o there is a material inaccuracy in, or omission from, information
publicly announced by Omni which would imply that the value of the
assets, business or undertaking of the Omni group is lower than the
value implied by the publicly released information;
o a higher competing proposal has been publicly announced; or
o if the Scheme is no longer recommended by the independent financial
advisor and/or the Omni board of directors.
Omni may choose not to proceed with the Merger if, before the effective date of
the Scheme there is a material breach by Celestica of its representations and
warranties.
Page 22
APPENDIX 2
TIMETABLE
----------------------------------- ---------------------- ----------------------------------------------
DATE DAY ACTION
----------------------------------- ---------------------- ----------------------------------------------
15 June 2001 Friday Announcement
----------------------------------- ---------------------- ----------------------------------------------
15 June 2001 Preparation of Scheme Document (including
internal review of drafts) (4 weeks)
- 13 July 2001
----------------------------------- ---------------------- ----------------------------------------------
13 July 2001 Friday Submit draft to SGX for clearance (4 weeks)
----------------------------------- ---------------------- ----------------------------------------------
10 August 2001 Friday SGX clearance
----------------------------------- ---------------------- ----------------------------------------------
13 August 2001 Monday File application to Court for directions to
convene Court Meeting (COURT MEETING)
----------------------------------- ---------------------- ----------------------------------------------
24 August 2001 Friday - Court hearing for Court Meeting
- Start printing of Scheme Document (at 2-3
days)
----------------------------------- ---------------------- ----------------------------------------------
29 August 2001 Wednesday - Post Scheme Document to Shareholders
- Advertise Notice of Court Meeting
----------------------------------- ---------------------- ----------------------------------------------
20 September 2001 Thursday Court Meeting
----------------------------------- ---------------------- ----------------------------------------------
20 September 2001 Thursday File application to Court for sanction of
Scheme
----------------------------------- ---------------------- ----------------------------------------------
27 September 0000 Xxxxxxxx Xxxxx hearing for sanction of Scheme
----------------------------------- ---------------------- ----------------------------------------------
28 September 2001 Friday Announcement of Court Sanction and Notice of
Books Closure Date/Record Date (at least 10
market days' notice)
----------------------------------- ---------------------- ----------------------------------------------
8 October 2001 Monday Last day of trading (3 clear market days
before Books Closure Date/Record Date)
----------------------------------- ---------------------- ----------------------------------------------
12 October 2001 Friday Books Closure Date/Record Date
----------------------------------- ---------------------- ----------------------------------------------
15 October 2001 Monday Merger Date* (date the Court Order is lodged
with ROC and the Scheme becomes effective)
----------------------------------- ---------------------- ----------------------------------------------
*Merger Date may be postponed depending on when it is agreed between the
parties that Omni Shareholders may make their election as to consideration
to be received under the Scheme.
Page 23
APPENDIX 3
FORM OF LETTER
FORM OF INDIVIDUAL AFFILIATE LETTER
Gentlemen:
The undersigned, a holder of ordinary shares ("Company Shares"), of Omni
Industries Limited, a Singapore incorporated company (the "Company"), is
entitled to receive in connection with the merger (the "Merger") of the Company
with Celestica Inc. or a subsidiary of Celestica Inc. ("Merger Sub"),
Subordinate Voting Shares (the "Subordinate Shares") of Celestica Inc., a
corporation organized under the laws of the Province of Ontario, Canada (the
"Parent"). The undersigned acknowledges that the undersigned may be deemed an
"affiliate" of the Company within the meaning of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Act"), although
nothing contained herein should be construed as an admission of such fact.
If the undersigned were an affiliate under the Act, the undersigned's ability to
sell, assign or transfer the Subordinate Shares received by the undersigned in
exchange for any Company Shares pursuant to the Merger may be restricted unless
an exemption from such registration is available. The undersigned understands
that such exemptions are limited and the undersigned has obtained advice of
counsel as to the nature and conditions of such exemptions including information
with respect to the applicability to the sale of such securities pursuant to
Rules 144 and 145(d) promulgated under the Act.
The undersigned hereby represents to and covenants with the Company, Merger Sub
and Parent that the undersigned will not sell, assign or transfer any of the
Subordinate Shares received by the undersigned in exchange for Company Shares
pursuant to the Merger except (i) in conformity with the volume and other
limitations of Rule 145, or (ii) in a transaction which, in the opinion of the
general counsel of Parent or other independent counsel reasonably satisfactory
to Parent or as described in a "no-action" or interpretative letter from Staff
of the Securities and Exchange Commission (the "SEC"), is not required to be
registered under the Act.
In the event of a sale or other disposition by the undersigned of Subordinate
Shares pursuant to Rule 145, the undersigned will supply Parent with evidence of
compliance with such Rule, in the form of a letter in the form of Annex I hereto
with a certificate of compliance with Rule 145 in customary form from a broker
or a market maker attached thereto. The undersigned understands that Parent
will, on the Business Day immediately following the date on which such evidence
of compliance is received instruct the transfer agent to effectuate the transfer
of the Subordinate Shares sold as indicated in such letter and certificate.
The undersigned acknowledges and agrees that the following appropriate legend
will be placed on certificates representing Subordinate Shares received by the
undersigned in the Merger or held by a transferee thereof, which legends will be
removed (i) by delivery of substitute certificates upon receipt of the
compliance evidence referred to in the paragraph above which shall be delivered
in accordance with the notice provisions set out below; and (ii) without further
action upon expiry of the period of one year from the date of issuance of the
Subordinate Shares.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE REOFFERED OR SOLD ONLY IF
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR IF AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
The undersigned acknowledges that (i) the undersigned has carefully read this
letter and understands the requirements hereof and the limitations imposed upon
the distribution, sale, transfer or other disposition of Subordinate Shares and
(ii) the receipt by Parent of this letter is an inducement and a condition to
Parent's obligations to consummate, or to procure that a wholly-owned subsidiary
of Parent consummate, the Merger.
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Any notice or evidence of compliance referred to in this letter shall be given
in writing by personal delivery or by facsimile transmission. It shall be served
by sending it by fax to the numbers set out below or delivering it by hand to
the address set out below in each case marked for the attention of the relevant
parties set out below (or as otherwise notified from time to time in accordance
with this letter). Any notice so served by hand or by fax shall be deemed to
have been duly given (i) in the case of delivery by hand, at the time of receipt
stamped on a delivery receipt; and (ii) in the case of fax, at the time of
transmission of the later of the two transmissions (provided that a confirmed
receipt of each of the two transmissions is received on the sender's facsimile
machine); provided that in each case where delivery by hand or by fax occurs
after 6pm on a Business Day or on a day which is not a Business Day, service
shall be deemed to occur at 9am on the next following Business Day. References
to time in this clause are to local time in the country of the addressee and
references to a Business Day are to days (excluding Saturdays) on which banks in
Singapore and Toronto are open for a full range of banking business.
The relevant address and fax numbers of Parent for the purposes of this letter
are as follows:
(a) Address: Celestica Inc.
00 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxx Xxxx, Senior Vice-President, Mergers & Acquisitions
Facsimile: x0 000 000 0000
Attention: Xxxxxxxxx XxxXxxxxx, Vice-President and General Counsel
Facsimile: x0 000 000 0000
(A separate notice shall be sent to EACH of the two addressees)
Provided that Parent may notify the other party to this Agreement of a
change to its name, relevant addressee(s), address or fax number(s),
provided that, such notice shall only be effective on:
(a) the date specified in the notice as the date on which the
change is to take place; or
(b) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date following five Business Days after notice of any
change has been given.
Dated:
Very truly yours,
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ANNEX I
[NAME] [DATE]
On ______________ the undersigned sold the Subordinate Voting Shares of
Celestica Inc. ("PARENT") described below in the space provided for that purpose
(the "SUBORDINATE SHARES"). The Subordinate Shares were received by the
undersigned in connection with the merger of Omni Industries Limited with and
into Parent or a subsidiary of Parent. Based upon the most recent report or
statement filed by Parent with the Securities and Exchange Commission, including
the most recent weekly trading volumes and number of outstanding shares
disclosed therein, the Subordinate Shares sold by the undersigned were within
the prescribed limitations set forth in paragraph (e) of Rule 144 promulgated
under the Securities Act of 1933, as amended (the "Act").
The undersigned hereby represents that the Subordinate Shares were sold in
"brokers' transactions" within the meaning of Section 4(4) of the Act or in
transactions directly with a "market maker" as that term is defined in Section
3(a)(38) of the Securities Exchange Act of 1934, as amended. The undersigned
further represents that the undersigned has not solicited or arranged for the
solicitation of orders to buy the Subordinate Shares, and that the undersigned
has not made any payment in connection with the offer or sale of the Subordinate
Shares to any person other than to the broker who executed the order in respect
of such sale.
Very truly yours,
[Space to be provided for description of securities]
[NOTE: This letter to be accompanied by a letter from the selling broker or
market maker confirming compliance with the requirements of Rule 145.]
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