1
EXHIBIT 1.01
27,000,000 SHARES
FLEXTRONICS INTERNATIONAL LTD.
ORDINARY SHARES
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UNDERWRITING AGREEMENT
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February 1, 0000
XXXX XX XXXXXXX SECURITIES LLC
XXXXXXX, XXXXX & CO.
XXXXXXX XXXXX XXXXXX INC.
XXXXXX XXXXXX PARTNERS LLC
BEAR, XXXXXXX & CO. INC.
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXX BROTHERS INC.
XXXXXXXXX XXXXXXXX, INC.
As Representatives of the Several Underwriters
c/o Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. Flextronics International Ltd., a Singapore
company (the "Company"), proposes to issue and sell to you and to the several
underwriters named in Schedule A (the "Underwriters") 27,000,000 shares of its
authorized but unissued Ordinary Shares S$.01 par value each in the capital of
the Company (the "Ordinary Shares"). The 27,000,000 shares to be sold by the
Company are referred to as the "Firm Common Shares." In addition, the Company
has granted to the Underwriters an option to purchase up to an additional
4,050,000 Ordinary Shares (the "Optional Common Shares") as provided in Section
4(b). The Firm Common Shares and the Optional Common Shares are collectively
referred to as the "Common Shares." Banc of America Securities LLC, Xxxxxxx,
Xxxxx & Co., Xxxxxxx Xxxxx Barney Inc., Xxxxxx Xxxxxx Partners LLC, Bear,
Xxxxxxx & Co. Inc., Deutsche Banc
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Alex. Xxxxx Inc., Xxxxxx Brothers Inc. and Xxxxxxxxx Xxxxxxxx, Inc. have agreed
to act as representatives of the several Underwriters (in such capacity, the
"Representatives") in connection with the offering and sale of the Common
Shares.
The Company hereby confirms its agreement with respect to your
purchase of the Common Shares as follows:
2. Representations and Warranties of the Company. The Company
hereby represents, warrants and covenants to you (the "Underwriter") as follows:
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission"), in conformity with the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") thereunder, a Registration
Statement on Form S-3 (File No. 333-46770), including a prospectus
relating to the registration of the Common Shares (as amended to the
date hereof, the "Registration Statement"). The Registration Statement
has been declared effective by the Commission under the Securities Act.
The Company has also filed with, or shall promptly hereafter file with
the Commission, a final prospectus supplement specifically relating to
the Common Shares pursuant to Rule 424(b). The prospectus included in
the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together
with the final prospectus supplement specifically relating to the Common
Shares. As used herein, the terms "Registration Statement," "Basic
Prospectus," and "Prospectus" shall include in each case the material,
if any, incorporated by reference therein or deemed incorporated by
reference therein pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(collectively, the "Exchange Act"). There have been delivered to you
four signed copies of the Registration Statement and all amendments and
supplements thereto, together with four copies of each exhibit filed
therewith.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or
"stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any
document under the Exchange Act which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus, as the
case may be.
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(b) The Commission has not issued any order preventing or
suspending the use of the Basic Prospectus, and the Basic Prospectus has
conformed in all material respects to the requirements of the Act and
the Rules and Regulations and, as of its date, has not included any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and at the
time the Registration Statement became effective, and at all times
subsequent thereto up to and including each Closing Date hereinafter
mentioned, the Registration Statement and the Prospectus, and any
amendments or supplements thereto, will contain all material statements
and information required to be included therein by the Act and the Rules
and Regulations, and will in all material respects conform to the
requirements of the Act and the Rules and Regulations, and neither the
Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, will include any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, no representation or warranty contained in this subsection 2(b)
shall be applicable to information contained in or omitted from the
Registration Statement, the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriters, directly
or through the Representatives, specifically for use in the preparation
thereof. Each preliminary prospectus and the Prospectus filed with the
Commission by electronic submission was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and
sale of the Common Shares.
(c) The Company does not own or control, directly or indirectly,
any material corporation, association or other entity other than the
subsidiaries listed on Schedule B. The Company has been duly
incorporated and is validly existing as a public company under the laws
of Singapore. Each of the subsidiaries of the Company has been duly
incorporated and is validly existing in its jurisdiction of
incorporation or formation. The Company and each of its subsidiaries has
full power and authority (corporate and other) to own and lease their
respective properties and conduct their respective businesses; except as
disclosed in the Registration Statement, the Company owns all of the
outstanding capital stock or joint venture interests of its
subsidiaries, free and clear of all claims, liens, charges and
encumbrances; the Company and each of its subsidiaries are in possession
of and operating in compliance with all authorizations, licenses,
permits, consents, certificates and orders material to the conduct of
their respective businesses, all of which are valid and in full force
and effect; the Company and each of its subsidiaries are duly qualified
to do business and are in good standing as foreign corporations in each
jurisdiction in which the ownership or leasing of properties or the
conduct of their respective businesses requires such qualification,
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except for jurisdictions in which the failure to so qualify would not
have a material ad verse effect upon the Company or the subsidiary; and
no proceedings have been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification.
(d) The Company has an authorized share capital as set forth
under the heading "Capitalization" in the Prospectus and issued share
capital as of December 31, 2000, as set forth under the heading
"Capitalization" in the Prospectus; the issued and outstanding Ordinary
Shares have been duly authorized and validly issued, are fully paid,
have been issued in compliance with all federal and state securities
laws, whether of Singapore, the United States or otherwise, were not
issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities, and conform to the
description thereof contained in the Prospectus. All issued and
outstanding shares of capital stock of each subsidiary of the Company
have been duly authorized and validly issued and are fully paid. Except
as disclosed in the Prospectus and the financial statements of the
Company, and the related notes thereto, included in the Prospectus,
neither the Company nor any subsidiary has outstanding any options to
purchase, or any preemptive rights or other rights to subscribe for or
to purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital stock
or any such options, rights, convertible securities or obligations
(except for options granted pursuant to plans described in the
Prospectus subsequent to the date of information set forth in the
Prospectus). The description of the Company's stock option, stock bonus
and other stock schemes, plans or arrangements, and the options or other
rights granted and exercised thereunder, set forth in the Prospectus
accurately and fairly presents the information required to be shown with
respect to such schemes, plans, arrangements, options and rights.
(e) The Common Shares to be purchased by the Underwriters from
the Company have been duly authorized and, when issued, delivered and
paid for in the manner set forth in this Agreement, will be duly
authorized, validly issued and fully paid, and will conform to the
description thereof contained in the Prospectus. No preemptive rights or
other rights to subscribe for or purchase exist with respect to the
issuance and sale of the Common Shares by the Company pursuant to this
Agreement. No shareholder of the Company has any right which has not
been waived to require the Company to register the sale of any shares
owned by such shareholder under the Act in the public offering
contemplated by this Agreement. No further approval or authority of the
shareholders or the Board of Directors of the Company will be required
for the issuance and sale of the Common Shares to be sold by the Company
as contemplated herein other than the Board of Directors' approval of
the list of purchasers of the Common Shares, which will occur prior to
the Closing.
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(f) The Company has full legal right, power and authority to
enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company in accordance with its terms. The making and performance of this
Agreement by the Company and the consummation of the transactions herein
contemplated will not violate any provisions of the Memorandum and
Articles of Association, Certificate of Incorporation, or other
organizational documents, of the Company or any of its subsidiaries, and
will not conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or the passage of time or
both, a default under any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or any of its respective properties may be bound
or affected (except as to conflicts, breaches, violations or defaults of
any of the foregoing that individually or in the aggregate would not be
material to the Company), any statute or any authorization, judgment,
decree, order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the
Company or any of its subsidiaries or any of their respective
properties. No consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body
is required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, except
for compliance with the Act, the Blue Sky laws applicable to the public
offering of the Common Shares by the Underwriters and, if applicable,
the clearance of such offering with the National Association of
Securities Dealers, Inc. (the "NASD").
(g) Xxxxxx Xxxxxxxx LLP, who has expressed its opinion with
respect to the consolidated financial statements and schedules filed
with the Commission as a part of the Registration Statement and included
in the Prospectus and in the Registration Statement, and Deloitte &
Touche LLP, PricewaterhouseCoopers LLP and Ernst & Young LLP, who have
expressed their opinion with respect to the consolidated financial
statements and schedules referred to in the Registration Statement and
Prospectus are independent accountants as required by the Act, the Rules
and Regulations and the Exchange Act.
(h) The consolidated financial statements and schedules of the
Company and its subsidiaries, and the related notes thereto, included in
each Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as
of the respective dates of such financial statements and schedules, and
the results of operations and changes in financial position of the
Company and its subsidiaries for the respective periods covered thereby.
Such statements, schedules and related notes have been prepared in
accordance with generally accepted
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accounting principles applied on a consistent basis as certified by the
independent accountants named in subsection 2(g). No other financial
statements or schedules are required to be included in the Registration
Statement. The selected financial data set forth in the Prospectus under
the caption "Capitalization" fairly present the information set forth
therein on the basis stated in the Registration Statement.
(i) Except as disclosed in the Prospectus, and except as to
defaults which individually or in the aggregate would not be material to
the Company, neither the Company nor any of its subsidiaries is in
violation or default of any provision of its Memorandum and Articles of
Association, Certificate of Incorporation, or other organizational
documents, or is in breach of or default with respect to any provision
of any agreement, judgment, decree, order, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument to
which it is a party or by which it or any of its properties are bound;
and there does not exist any state of facts which constitutes an event
of default on the part of the Company or any such subsidiary as defined
in such documents or which, with notice or lapse of time or both, would
constitute such an event of default.
(j) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits to
the Registration Statement by the Act or by the Rules and Regulations
which have not been described or filed as required. The descriptions of
the contracts so described in the Prospectus are accurate; all such
contracts are in full force and effect on the date hereof; and neither
the Company nor any of its subsidiaries, nor to the best of the
Company's knowledge, any other party is in breach of or default under
any of such contracts.
(k) There are no legal or governmental actions, suits or
proceedings pending or, to the best of the Company's knowledge,
threatened to which the Company or any of its subsidiaries is or may be
a party or of which property owned or leased by the Company or any of
its subsidiaries is or may be the subject, or related to environmental
or discrimination matters, which actions, suits or proceedings might,
individually or in the aggregate, prevent or adversely affect the
transactions contemplated by this Agreement or result in a material
adverse change in the condition (financial or otherwise), properties,
business, results of operations or, to the best of the Company's
knowledge, prospects of the Company and its subsidiaries; and no labor
disturbance by the employees of the Company or any of its subsidiaries
exists or is imminent which might be expected to affect adversely such
condition, properties, business, results of operations or, to the best
of Company's knowledge, prospects. Neither the Company nor any of its
subsidiaries is a party or subject to the provisions of any material
injunction, judgment, decree or order of any court, regulatory body,
administrative agency or other governmental body.
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(l) The Company or the applicable subsidiary has good and
marketable title to all the properties and assets reflected as owned in
the financial statements hereinabove described (or elsewhere in the
Prospectus), subject to no lien, mortgage, pledge, charge or encumbrance
of any kind except (i) those, if any, reflected in such financial
statements (or elsewhere in the Prospectus), or (ii) those which are not
material in amount and do not adversely affect the use made and proposed
to be made of such property by the Company and its subsidiaries. The
Company or the applicable subsidiary holds its leased properties under
valid and binding leases, with such exceptions as are not materially
significant in relation to the business of the Company. Except as
disclosed in the Prospectus, the Company owns or leases all such
properties as are necessary to its operations as now conducted or as
proposed to be conducted as described in the Registration Statement.
(m) Since the respective dates as of which information is given
in the Registration Statement and Prospectus, and except as described in
or specifically contemplated by the Prospectus: (i) the Company and its
subsidiaries have not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material verbal or
written agreement or other transaction which is not in the ordinary
course of business; (ii) the Company and its subsidiaries have not
sustained any material loss or interference with their respective
businesses or properties from fire, flood, windstorm, accident or other
calamity, whether or not covered by insurance; (iii) the Company has not
paid or declared any dividends or other distributions with respect to
its issued share capital and the Company and its subsidiaries are not in
default in the payment of principal or interest on any outstanding debt
obligations; (iv) there has not been any change in the share capital
(other than upon the sale of the Common Shares hereunder and the grant
of options in the ordinary course of business or exercise of options
disclosed in the Prospectus) or indebtedness material to the Company and
its subsidiaries (other than in the ordinary course of business); and
(v) there has not been any material adverse change in the condition
(financial or otherwise), business, properties, results of operations
or, to the best of the Company's knowledge, prospects of the Company and
its subsidiaries.
(n) Except as disclosed in or specifically contemplated by the
Prospectus, the Company and its subsidiaries have sufficient trademarks,
trade names, patent rights, mask works, copyrights, licenses, approvals
and governmental authorizations to conduct their businesses as now
conducted; the expiration of any trademarks, trade names, patent rights,
mask works, copyrights, licenses, approvals or governmental
authorizations would not have a material adverse effect on the condition
(financial or otherwise), business, results of operations or, to the
best of the Company's knowledge, prospects of the Company or its
subsidiaries; and the Company has no knowledge of any material
infringement by it or its subsidiaries of trademark, trade name rights,
patent
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rights, mask works, copyrights, licenses, trade secret or other
similar rights of others, and there is no claim being made against the
Company or its subsidiaries regarding trademark, trade name, patent,
mask work, copyright, license, trade secret or other infringement which
could have a material adverse effect on the condition (financial or
otherwise), business, results of operations or, to the best of the
Company's knowledge, prospects of the Company and its subsidiaries.
(o) The Company has not been advised, and has no reason to
believe, that either it or any of its subsidiaries is not conducting
business in compliance with all applicable laws, rules and regulations
of the jurisdictions in which it is conducting business, including,
without limitation, all applicable local, state and federal
environmental laws and regulations; except where failure to be so in
compliance would not materially adversely affect the condition
(financial or otherwise), business, results of operations or, to the
best of the Company's knowledge, prospects of the Company and its
subsidiaries.
(p) The Company and its subsidiaries have filed all necessary
federal, national, state, provincial, foreign and other income and
franchise tax returns and have paid all taxes shown as due thereon; and
the Company has no knowledge of any tax deficiency which has been or
might be asserted or threatened against the Company or its subsidiaries
which could materially and adversely affect the business, operations or
properties of the Company and its subsidiaries.
(q) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(r) The Company has not distributed and will not distribute
prior to the Closing Date any offering material in connection with the
offering and sale of the Common Shares other than the Prospectus, the
Registration Statement and the other materials permitted by the Act.
(s) Each of the Company and its subsidiaries maintain insurance
of the types and in the amounts generally deemed adequate for its
business, including, but not limited to, insurance covering real and
personal property owned or leased by the Company and its subsidiaries
against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full
force and effect.
(t) To the Company's knowledge, except as otherwise disclosed in
or specifically contemplated by the Prospectus or as would not,
individually or in the aggregate, result in a material adverse change in
the condition (financial or otherwise) business
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or results of operations (i) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign law
or regulation relating to pollution or protection of human health or 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 emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
and petroleum products (collectively, "Materials of Environmental
Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Materials of Environment Concern (collectively, "Environmental
Laws"), which violation includes, but is not limited to, noncompliance
with any permits or other governmental authorizations required for the
operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries
received any written communication, whether from a governmental
authority, citizens group, employee or otherwise, that alleges that the
Company or any of its subsidiaries is in violation of any Environmental
Law; (ii) there is no claim, action or cause of action filed with a
court or governmental authority, no investigation with respect to which
the Company has received written notice, and no written notice by any
person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties
arising out of, based on or resulting from the presence, or release into
the environment, of any Material of Environmental Concern at any
location owned, leased or operated by the Company or any of its
subsidiaries, now or in the past (collectively, "Environmental Claims"),
pending or, threatened in writing against the Company or any of its
subsidiaries or any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained
or assumed either contractually or by operation of law; and (iii) there
are no present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission,
discharge, presence or disposal of any Material of Environmental
Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim
against the Company or any of its subsidiaries or against any person or
entity whose liability for any Environmental Claim the Company or any of
its subsidiaries has retained or assumed either contractually or by
operation of law.
(u) Neither the Company nor any of its subsidiaries has at any
time during the last five years (i) made any unlawful contribution to
any candidate for public office, or failed to disclose fully any
contribution in violation of law, or (ii) made any payment to any
governmental officer or official, or other person charged with similar
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public or quasi-public duties, other than payments required or permitted
by the laws of the United States or any jurisdiction thereof.
(v) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected
to cause or result in stabilization or manipulation of the price of the
Ordinary Shares to facilitate the sale or resale of the Common Shares.
(w) Subject to the approval of the list of purchasers by the
Board of Directors of the Company as referred to in (e) above, no
transfer taxes are required to be paid in connection with the sale and
delivery of the Common Shares to the Underwriter hereunder.
(x) The Ordinary Shares (including the Common Shares) are
registered pursuant to Section 12(g) of the Exchange Act and are listed
on the Nasdaq National Market, and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Ordinary Shares under the Exchange Act or delisting
the Ordinary Shares from the Nasdaq National Market, nor has the Company
received any notification that the Commission or the NASD is
contemplating terminating such registration or listing.
(y) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and
at the Closing Date, as the case may be, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Any certificate signed by an officer of the Company and
delivered to the Underwriter or to counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
3. Representations and Warranties of the Underwriters. The
Underwriters represent and warrant to the Company that the information set forth
on the cover page of the Prospectus with respect to price, underwriting
discounts and commissions and the information (other than the first, third,
fourth, fifth, sixth, eleventh and thirteenth paragraphs) under "Underwriting"
in the Prospectus was furnished to the Company by and on behalf of the
Underwriters
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for use in connection with the preparation of the Prospectus and is
correct in all material respects.
4. Purchase, Sale and Delivery of Common Shares.
(a) The Firm Common Shares; the First Closing Date. Upon the
terms herein set forth, the Company agrees to issue and sell to the several
Underwriters an aggregate of 27,000,000 Firm Common Shares. On the basis of the
representations, warranties and agreements herein contained, and upon the terms
but subject to the conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase from the Company the respective number of
Firm Common Shares set forth opposite their names on Schedule A. The purchase
price per Firm Common Share to be paid by the several Underwriters to the
Company shall be $37 15/16 per share.
Delivery of certificates for the Firm Common Shares to be
purchased by the Underwriters and payment therefor shall be made at the offices
of Banc of America Securities LLC, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx (or such other place as may be agreed to by the Company and the
Representatives) at 6:00 a.m. San Francisco time, on February 6, 2001, or such
other time and date not later than 10:30 a.m. San Francisco time, on February 6,
2001 as the Representatives shall designate by notice to the Company (the time
and date of such closing are called the "First Closing Date"). The Company
hereby acknowledges that circumstances under which the Representatives may
provide notice to postpone the First Closing Date as originally scheduled
include, but are in no way limited to, any determination by the Company or the
Representatives to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the provisions of Section
11.
(b) The Optional Common Shares; the Second Closing Date. In
addition, on the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set forth,
the Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of 4,050,000 Optional Common
Shares from the Company at the purchase price per share to be paid by the
Underwriters for the Firm Common Shares. The option granted hereunder is for use
by the Underwriters solely in covering any over-allotments in connection with
the sale and distribution of the Firm Common Shares. The option granted
hereunder may be exercised at any time (but not more than once) upon notice by
the Representatives to the Company which notice may be given at any time within
30 days from the date of this Agreement. Such notice shall set forth (i) the
aggregate number of Optional Common Shares as to which the Underwriters are
exercising the option, (ii) the names and denominations in which the
certificates for the Optional Common Shares are to be registered and (iii) the
time, date and place at which such certificates will be delivered (which time
and date may be simultaneous with, but
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not earlier than, the First Closing Date; and in such case the term "First
Closing Date" shall refer to the time and date of delivery of certificates for
the Firm Common Shares and the Optional Common Shares). Such time and date of
delivery, if subsequent to the First Closing Date, is called the "Second
Closing Date" and shall be determined by the Representatives and shall not be
earlier than three nor later than five full business days after delivery of such
notice of exercise. The term "Closing Date" shall refer to either the First
Closing Date or the Second Closing Date, as the case may be. If any Optional
Common Shares are to be purchased, (a) each Underwriter agrees, severally and
not jointly, to purchase the number of Optional Common Shares (subject to such
adjustments to eliminate fractional shares as the Representative may determine)
that bears the same proportion to the total number of Optional Common Shares to
be purchased as the number of Firm Common Shares set forth on Schedule A
opposite the name of such Underwriter bears to the total number of Firm Common
Shares and the Company agrees to sell the total number of Optional Common Shares
to be sold. The Representatives may cancel the option at any time prior to its
expiration by giving written notice of such cancellation to the Company.
(c) Public Offering of the Common Shares. The Representatives
hereby advise the Company that the Underwriters intend to offer for sale to the
public, as described in the Prospectus, their respective portions of the Common
Shares as soon after this Agreement has been executed as the Representatives, in
their sole judgment, have determined is advisable and practicable.
(d) Payment for the Common Shares. Payment for the Common Shares
to be sold by the Company shall be made at the First Closing Date (and, if
applicable, at the Second Closing Date) by wire transfer of immediately
available funds to the order of the Company.
It is understood that the Representatives have been authorized,
for their own account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the
Firm Common Shares and any Optional Common Shares the Underwriters have agreed
to purchase. Banc of America Securities LLC, individually and not as a
Representative of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representatives by the First Closing Date or
the Second Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any of
its obligations under this Agreement.
(e) Delivery of the Common Shares. The Company shall deliver, or
cause to be delivered, to the Representatives for the accounts of the several
Underwriters certificates for the Firm Common Shares to be sold at the First
Closing Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price
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therefor. The Company shall also deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters, certificates for
the Optional Common Shares the Underwriters have agreed to purchase at the First
Closing Date or the Second Closing Date, as the case may be, against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The certificates for the Common Shares
shall be in definitive form and registered in such names and denominations as
the Representatives shall have requested at least two full business days prior
to the First Closing Date (or the Second Closing Date, as the case may be) and
shall be made available for inspection on the business day preceding the First
Closing Date (or the Second Closing Date, as the case may be) at a location in
New York as the Representatives may designate. Time shall be of the essence, and
delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriters.
(f) Delivery of Prospectus to the Underwriters. Not later than
12:00 p.m. on the second business day following the date the Common Shares are
first released by the Underwriters for the sale to the public, the Company shall
deliver or cause to be delivered, copies of the Prospectus in such quantities
and at such places as the Representatives shall request.
5. Covenants of the Company. The Company covenants and agrees
that:
(a) If the filing of the Prospectus is required under Rule
424(b) of the Rules and Regulations, the Company will file the
Prospectus, properly completed, pursuant to the applicable paragraph of
Rule 424(b) of the Rules and Regulations within the time period
prescribed and will provide evidence satisfactory to you of such timely
filing. The Company will promptly advise you in writing (i) of the
receipt of any comments of the Commission, (ii) of any request of the
Commission for amendment of or supplement to the Registration Statement,
the Basic Prospectus or the Prospectus or for additional information,
and (iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the institution of
any proceedings for that purpose. If the Commission shall enter any such
stop order at any time, the Company will use its best efforts to obtain
the lifting of such order at the earliest possible moment. The Company
will not file any amendment or supplement to the Registration Statement,
the Basic Prospectus or the Prospectus (including any amendment or
supplement through incorporation by reference of any report filed under
the Exchange Act) of which you have not been furnished with a copy a
reasonable time prior to such filing or to which you reasonably object
or which is not in compliance with the Act and the Rules and
Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or
14
-20-
the Prospectus which in your judgment may be necessary or advisable to
enable the Underwriters to continue the distribution of the Common
Shares and will use its best efforts to cause the same to become
effective as promptly as possible. The Company will fully and completely
comply with the provisions of Rules 424(b), 430A and 434, as applicable,
of the Rules and Regulations with respect to information omitted from
the Registration Statement in reliance upon any such Rule.
(c) If at any time within the nine-month period referred to in
Section 10(a)(3) of the Act during which a prospectus relating to the
Common Shares is required to be delivered under the Act any event
occurs, as a result of which the Prospectus, including any amendments or
supplements, would include an untrue statement of a material fact, or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or if it is
necessary at any time to amend the Prospectus, including any amendments
or supplements, to comply with the Act or the Rules and Regulations, the
Company will promptly advise you thereof and will promptly prepare and
file with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment or
supplement which will effect such compliance and will use its best
efforts to cause the same to become effective as soon as possible; and,
in case the Underwriters are required to deliver a prospectus after such
nine-month period, the Company upon request, but at the expense of the
Underwriters, will promptly prepare such amendment or amendments to the
Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after the
end of the first quarter ending after one year following the "effective
date of the Registration Statement" (as defined in Rule 158(c) of the
Rules and Regulations), the Company will make generally available to its
security holders an earning statement (which need not be audited)
covering a period of 12 consecutive months beginning after the effective
date of the Registration Statement which will satisfy the provisions of
the last paragraph of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the
Company, at its expense, but only for the nine-month period referred to
in Section 10(a)(3) of the Act, will furnish to you or mail to your
order copies of the Registration Statement, the Prospectus, the Basic
Prospectus and all amendments and supplements to any such documents
(including any documents incorporated or deemed incorporated by
reference therein) in each case as soon as available and in such
quantities as you may request, for the purposes contemplated by the Act.
15
-21-
(f) The Company shall cooperate with you and your counsel in
order to qualify or register the Common Shares for sale under (or obtain
exemptions from the application of) the Blue Sky laws of such
jurisdictions as you designate (including those of Canada) and under the
applicable securities laws of such other nations as you may designate,
will comply with such laws and will continue such qualifications, reg-
istrations and exemptions in effect so long as reasonably required for
the distribution of the Common Shares. The Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any such jurisdiction where it is not presently
qualified. The Company will advise you promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the
Common Shares for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification,
registration or exemption, the Company, with your cooperation, will use
its best efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will
furnish to Banc of America Securities LLC: (i) as soon as practicable
after the end of each fiscal year, copies of the Annual Report of the
Company containing the balance sheet of the Company as of the close of
such fiscal year and statements of income, shareholders' equity and cash
flows for the year then ended and the opinion thereon of the Company's
independent public accountants; (ii) as soon as practicable after the
filing thereof, copies of each proxy statement, Annual Report on Form
10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report
filed by the Company with the Commission, the NASD or any securities
exchange; and (iii) as soon as available, copies of any report or
communication of the Company mailed generally to holders of its Ordinary
Shares.
(h) During the period of 90 days after the first date that any
of the Common Shares are released by you for sale to the public, without
the prior written consent of the Underwriter (which consent may be
withheld at the sole discretion of the Underwriter), the Company will
not issue, offer, sell, grant options to purchase or otherwise dispose
of any of the Company's equity securities or any other securities
convertible into or exchangeable with its Ordinary Shares or other
equity security, other than pursuant to outstanding stock options and
warrants disclosed in the Prospectus and other than the grant of options
or the issuance of the Company's equity securities pursuant to the
Company's employee share option plans described in the Prospectus or the
issuance of Ordinary Shares in connection with acquisitions.
(i) The Company will use all reasonable efforts to obtain signed
lock-up agreements from its executive officers listed on Schedule C, the
form of which is attached as Exhibit C, prior to the First Closing Date
or promptly thereafter and such
16
-22-
lock-up agreements shall provide for no more than 1,800,000 Ordinary
Shares, in the aggregate, to be sold during the 75 day period covered by
such lock-up agreements. The Company shall promptly notify Banc of
America Securities LLC of any sale of Ordinary Shares by any of its
executive officers or directors.
(j) The Company will apply the net proceeds of the sale of the
Common Shares sold by it substantially in accordance with its statements
under the caption "Use of Proceeds" in the Prospectus.
(k) During such period as a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the
Company will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and
within the time periods required by the Exchange Act.
6. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective or is
terminated, the Company agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limiting the
generality of the foregoing (i) all expenses incident to the issuance and
delivery of the Common Shares (including all printing and engraving costs), (ii)
all fees and expenses of the registrar and transfer agent of the Ordinary
Shares, (iii) all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale of the Common Shares to the Underwriters, (iv) all
fees and expenses of the Company's counsel and the Company's independent
accountants, including fees of counsel or independent accountants with respect
to any subsidiary of the Company, (v) all costs and expenses incurred in
connection with the printing, filing, shipping and distribution of the
Registration Statement, the Basic Prospectus and the Prospectus (including all
exhibits and financial statements) and all amendments and supplements provided
for herein, this Agreement, any Selected Dealers Agreement, Underwriters' Power
of Attorney or the Blue Sky memorandum, (vi) all filing fees, attorneys' fees
and expenses incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Common Shares for offer and sale under
the Blue Sky laws (including those of Canada) and under the applicable
securities laws of such other nations as you may designate, (vii) the filing fee
incident to the review and approval, if any, of the Underwriters' participation
in the offering and distribution of the Common Shares by the NASD, and (viii)
all other fees, costs and expenses incident to the offering as would typically
be disclosed in Part II of a registration statement under the Act. Except as
provided in this Section 6, Section 8 and Section 10 hereof, the Underwriters
shall pay all of their own expenses, including the fees and disbursements of
counsel (excluding those relating to qualification, registration or exemption
under the Blue Sky laws (including those of Canada) and under the applicable
17
-23-
securities laws of such other nations as you may designate, and the Blue Sky
memorandum).
7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Common
Shares on the First Closing Date shall be subject to the accuracy of the
representations and warranties on the part of the Company herein set forth as of
the date hereof and as of the First Closing Date as though then made and, with
respect to the Optional Common Shares, as of the Second Closing Date as though
then made, to the accuracy of the statements of Company officers made pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
(a) If the filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b) of the Rules and Regulations, the
Prospectus shall have been filed in the manner and within the time
period required by Rule 424(b) of the Rules and Regulations; and prior
to such Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or shall be periling or, to the
knowledge of the Company or you, shall be contemplated by the
Commission; and any request of the Commission for inclusion of
additional information in either Registration Statement, or otherwise,
shall have been complied with to your satisfaction.
(b) You shall be satisfied that since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, (i) there shall not have been any change in the authorized
or issued share capital of the Company or any of its subsidiaries other
than pursuant to the exercise of outstanding options disclosed in the
Prospectus or any material change in the indebtedness (other than in the
ordinary course of business) of the Company or any of its subsidiaries,
(ii) except as set forth or contemplated by the Registration Statement
or the Prospectus, no material verbal or written agreement or other
transaction shall have been entered into by the Company or any of its
subsidiaries, which is not in the ordinary course of business or which
could result in a material reduction in the future earnings of the
Company and its subsidiaries, (iii) no loss or damage (whether or not
insured) to the property of the Company or any of its subsidiaries shall
have been sustained which materially and adversely affects the condition
(financial or otherwise), business, results of operations or prospects
of the Company and its subsidiaries, (iv) no legal or governmental
action, suit or proceeding affecting the Company or any of its
subsidiaries which is material to the Company and its subsidiaries or
which affects or may affect the transactions contemplated by this
Agreement shall have been instituted or threatened, and (v) there shall
not have been any material change in the condition (financial or
otherwise), business, management, results of operations or prospects of
the Company and its subsidiaries
18
-24-
which makes it impractical or inadvisable in the judgment of the
Underwriters to proceed with the public offering or purchase the Common
Shares as contemplated hereby.
(c) There shall have been furnished to you, on the Closing Date,
in form and substance satisfactory to you, except as otherwise expressly
provided below:
(i) An opinion of Xxxxx & Xxxxxxxx, counsel for the
Company, addressed to the Underwriters and dated the Closing
Date, the form of which is attached as Exhibit A.
(ii) An opinion of Fenwick & West LLP, special counsel
to the Company, addressed to the Underwriters and dated the
Closing Date, the form of which is attached as Exhibit B.
(iii) Such opinion or opinions of Xxxxxx Xxxxxx &
Xxxxxxx and Xxxxx Xxxxxx & Xxxxxxxxxxx, counsel for the
Underwriters, dated the Closing Date, with respect to the
incorporation of the Company, the sufficiency of all corporate
proceedings and other legal matters relating to this Agreement,
the validity of the Common Shares, the Registration Statement
and the Prospectus and other related matters as you may
reasonably require, and the Company shall have furnished to such
counsel such documents and shall have exhibited to them such
papers and records as they may reasonably request for the
purpose of enabling them to pass upon such matters. In
connection with such opinions, such counsel may rely on
representations or certificates of officers of the Company and
governmental officials.
(iv) A certificate of the Company executed by the Chief
Executive Officer and President, Systems Group of the Company,
dated the Closing Date, to the effect that:
(1) The representations and warranties of the
Company set forth in Section 2 of this Agreement are
true and correct as of the date of this Agreement and as
of the Closing Date, as the case may be, and the Company
has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied
on or prior to the Closing Date;
(2) The Commission has not issued any order
preventing or suspending the use of the Prospectus or
any Basic Prospectus filed as a part of the Registration
Statement or any amendment thereto; no stop
19
-25-
order suspending the effectiveness of the Registration
Statement has been issued; and to the best of the
knowledge of the respective signers, no proceedings for
that purpose have been instituted or are pending under
the Act;
(3) Each of the respective signers of the
certificate has carefully examined the Registration
Statement and the Prospectus; to the best of his
knowledge, the Registration Statement and the Prospectus
and any amendments or supplements thereto contain all
statements required to be stated therein regarding the
Company and its subsidiaries; and neither the
Registration Statement nor the Prospectus nor any
amendment or supplement thereto includes any untrue
statement of a material fact or omits to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading;
(4) Since the initial date on which the
Registration Statement was filed, no agreement, written
or oral, transaction or event has occurred which should
have been set forth in an amendment to the Registration
Statement or in a supplement to or amendment of any
prospectus which has not been disclosed in such a
supplement or amendment;
(5) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, and except as disclosed in or
contemplated by the Prospectus, there has not been any
material adverse change or a development involving a
material adverse change in the condition (financial or
otherwise), business, properties, results of operations,
management or, to the best knowledge of the respective
signing officers, prospects of the Company and its
subsidiaries; and no legal or governmental action, suit
or proceeding is pending or threatened against the
Company or any of its subsidiaries which is material to
the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, or
which may adversely affect the transactions contemplated
by this Agreement; since such dates and except as so
disclosed, neither the Company nor any of its
subsidiaries has entered into any verbal or written
agreement or other transaction not in the ordinary
course of business or which could result in a material
reduction in the future earnings of the Company or
incurred any material liability or obligation, direct,
contingent or indirect, made any change in its capital
stock, made any material change in its short-term debt
or funded debt or repurchased or otherwise acquired any
of the Company's capital stock; and the Company has not
declared
20
-26-
or paid any dividend, or made any other distribution,
upon its outstanding capital stock payable to
shareholders of record on a date prior to the Closing
Date;
(6) No "nationally recognized statistical rating
organization" as such term is defined for purposes of
Rule 436(g)(2) under the Act has downgraded or given
notice of any intended or potential downgrading as of
any review for a possible change that does not indicate
the direction of the possible change in the rating
accorded any securities of the Company; and
(7) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus and except as disclosed in or
contemplated by the Prospectus, the Company and its
subsidiaries have not sustained a material loss or
damage by strike, fire, flood, windstorm, accident or
other calamity (whether or not insured).
(v) On the Closing Date a letter addressed to you, from
Xxxxxx Xxxxxxxx LLP and Deloitte & Touche LLP, independent
accountants, in form and substance satisfactory to the
Underwriters.
(vi) On the date hereof, the Company shall have
furnished to the Representatives an agreement in the form of
Exhibit C hereto from the executive officers of the Company
named in Schedule C attached hereto, and such agreement shall be
in full force and effect on each of the First Closing Date and
the Second Closing Date.
(d) The NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
All such opinions, certificates, letters and documents shall be
in compliance with the provisions hereof only if they are satisfactory to you
and to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters. The Company shall
furnish you with such manually signed or conformed copies of such opinions,
certificates, letters and documents as you request.
If any condition to the Underwriters' obligations hereunder to
be satisfied prior to or at the Closing Date is not so satisfied, this Agreement
at your election will terminate upon notification by you to the Company without
liability on the part of the Underwriters or the Company except for the expenses
to be paid or reimbursed by the Company pursuant to Sections 6 and 8 hereof and
except to the extent provided in Section 10 hereof.
21
-27-
8. Reimbursement of Underwriters' Expenses. Notwithstanding any
other provisions hereof, if this Agreement shall be terminated by you pursuant
to Sections 7 or 13, or if the sale to the Underwriters of the Common Shares at
the Closing is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse you upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by you and them
in connection with the proposed purchase and the sale of the Common Shares,
including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, telegraph charges and telephone charges
relating directly to the offering contemplated by the Prospectus. Any such
termination shall be without liability of any party to any other party except
that the provisions of this Section, Section 6 and Section 10 shall at all times
be effective and shall apply.
9. Effectiveness of Registration Statement. The parties will use
their best efforts to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
10. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act against any losses, claims, damages, liabilities or expenses,
joint or several, to which any Underwriter or such controlling person may become
subject, under the Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Basic Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state in any of them a material fact required to be
stated therein or necessary to make the statements in any of them not
misleading, or arise out of or are based in whole or in part on any inaccuracy
in the representations and warranties of the Company contained herein or any
failure of the Company to perform its obligations hereunder or under law; and
will reimburse the Underwriters and each such controlling person for any legal
and other expenses as such expenses are reasonably incurred by the Underwriters
or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, the Basic
Prospectus,
22
-28-
the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with the information furnished to the Company pursuant to Section 3
hereof provided further, that the indemnity provided in this Section 10(a) with
respect to the Basic Prospectus shall not inure to the benefit of the
Underwriters if the person asserting any loss, claim, charge, liability or
litigation based upon any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state therein a material fact
was not sent or given a copy of the Prospectus in which such untrue statement or
alleged untrue statement or omission or alleged omission was corrected within
the time required by the Act and the Rules and Regulations thereunder. In
addition to its other obligations under this Section 10(a), the Company agrees
that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, or any inaccuracy
in the representations and warranties of the Company herein or failure to
perform its obligations hereunder, all as described in this Section 10(a), it
will reimburse the Underwriters on a quarterly basis for all reasonable legal or
other expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
its obligation to reimburse the Underwriters for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Underwriters shall
promptly return it together with interest, compounded daily, determined on the
basis of the prime rate (or other commercial lending rate for borrowers of the
highest credit standing) announced from time to time by Bank of America, N.A.
(the "Prime Rate"). Any such interim reimbursement payments which are not made
to the Underwriters within 30 days of a request for reimbursement shall bear
interest at the Prime Rate from the date of such request. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims, damages,
liabilities or expenses to which the Company, or any such director, officer or
controlling person may become subject, under the Act, the Exchange Act, or other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of the Underwriters), insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon any untrue or alleged untrue statement of
any material fact contained in the Registration Statement, the Basic Prospectus,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the
23
-29-
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Registration
Statement, any Basic Prospectus, the Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company pursuant to Section 3 hereof; and will reimburse the Company, or
any such director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. In addition
to its other obligations under this Section 10(b), each of the Underwriters
agrees that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in this
Section 10(b) which relates to written information furnished to the Company, it
will reimburse the Company (and, to the extent applicable, each officer,
director or controlling person) on a quarterly basis for all reasonable legal or
other expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the Underwriters' obligation to reimburse the Company (and, to the extent
applicable, each officer, director or controlling person) for such expenses and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Company (and, to the
extent applicable, each officer, director or controlling person) shall promptly
return it to the Underwriters together with interest, compounded daily,
determined on the basis of the Prime Rate. Any such interim reimbursement
payments which are not made to the Company within 30 days of a request for
reimbursement, shall hear interest at the Prime Rate from the date of such
request. This indemnity agreement will be in addition to any liability which the
Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded
24
-30-
that there may be a conflict between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, in each of which cases the fees
and expenses of counsel shall be at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 10 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of any losses, claims, damages, liabilities or expenses referred to herein (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, from
the offering of the Common Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
or inaccuracies in the representations and warranties herein which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The respective relative benefits received by
the Company, on the one hand, and the Underwriters, on the other hand, shall be
deemed to be in the same proportion, in the case of the Company, as the total
price paid to the Company for the Common Shares sold by it to the Underwriters
(net of underwriting commissions but before deducting expenses) bears to the
total price to the public set forth on the cover of the Prospectus, and in the
case of the Underwriters as the underwriting commissions received by it bears to
the total of such amounts paid to the Company and received by the Underwriters
as underwriting commissions. The relative fault of the Company, on the one hand,
and the Underwriters,
25
-31-
on the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact or the inaccurate or the
alleged inaccurate representation and/or warranty relates to information
supplied by the Company, on the one hand, or the Underwriters, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in subparagraph (c) of this Section 10, any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
subparagraph (c) of this Section 10 with respect to notice of commencement of
any action shall apply if a claim for contribution is to be made under this
subparagraph (d); provided, how ever, that no additional notice shall be
required with respect to any action for which notice has been given under
subparagraph (c) for purposes of indemnification. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 10 were determined solely by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 10, the Underwriters shall not be
required to contribute any amount in excess of the amount of the total
underwriting commissions received by the Underwriters in connection with the
Common Shares underwritten by it and distributed to the public. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in Sections 10(a)
and 10(b) hereof, including the amounts of any requested reimbursement payments
and the method of determining such amounts, shall be settled by arbitration
conducted under the provisions of the Constitution and Rules of the Board of
Governors of the New York Stock Exchange, Inc. or pursuant to the Code of
Arbitration Procedure of the NASD. Any such arbitration must be commenced by
service of a written demand for arbitration or written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in Sections 10(a) and 10(b)
hereof and would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of such
Sections 10(a) and 10(b) hereof.
11. Default of One or More of the Several Underwriters. If, on
the First Closing Date or the Second Closing Date, as the case may be, any one
or more of the several Underwriters shall fail or refuse to purchase Common
Shares that it or they have agreed to
26
-32-
purchase hereunder on such date, and the aggregate number of Common Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase does not exceed 10% of the aggregate number of the Common Shares to be
purchased on such date, the other Underwriters shall be obligated, severally,
and in the proportions that the number of Firm Common Shares set forth opposite
their respective names on Schedule A bears to the aggregate number of Firm
Common Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase
the Common Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date. If, on the First Closing Date or the
Second Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase Common Shares and the aggregate number of
Common Shares with respect to which such default occurs exceeds 10% of the
aggregate number of Common Shares to be purchased on such date, and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Common Shares are not made within 48 hours after such default, this Agreement
shall terminate without liability of any party to any party except that the
provisions of Section 6, Section 8 and Section 10 shall at all times be
effective and shall survive such termination. In any such case either the
Representatives or the Company shall have the right to postpone the First
Closing Date or the Second Closing Date, as the case may be, but in no event for
longer than seven days in order that the required changes, if any, to the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed
to include any person substituted for a defaulting Underwriter under this
Section 11. Any action taken under this Section 11 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
12. Effective Date. This Agreement shall become effective
immediately as to Sections 6, 8, 10, 13 and 15 and, as to all other provisions,
at 9:00 a.m., California time, on the date of execution of this Agreement.
13. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to
you or by you by notice to the Company at any time prior to the time
this Agreement shall become effective as to all its provisions, and any
such termination shall be without liability on the part of the Company
to the Underwriters (except for the expenses to be paid or reimbursed by
the Company pursuant to Sections 6 and 8 hereof and except to the extent
provided in Section 10 hereof) or of the Underwriters to the Company
(except to the extent provided in Section 10 hereof).
27
-33-
(b) This Agreement may also be terminated by you prior to the
Closing Date by notice to the Company (i) if additional material
governmental restrictions, not in force and effect on the date hereof,
shall have been imposed upon trading in securities generally or minimum
or maximum prices shall have been generally established on the New York
Stock Exchange or on the American Stock Exchange or in the over the
counter market by the NASD, or trading in securities generally shall
have been suspended on either such Exchange or in the over the counter
market by the NASD, or a general banking moratorium shall have been
established by federal, New York or California authorities, (ii) if an
outbreak of major hostilities or other national or international
calamity or any substantial change in political, financial or economic
conditions shall have occurred or shall have accelerated or escalated to
such an extent, as, in the judgment of the Underwriters, to affect
adversely the marketability of the Common Shares, (iii) if any adverse
event shall have occurred or shall exist which makes untrue or incorrect
in any material respect any statement or information contained in the
Registration Statement or the Prospectus or which is not reflected in
the Registration Statement or the Prospectus but should be reflected
therein in order to make the statements or information contained therein
not misleading in any material respect, or (iv) if there shall be any
action, suit or proceeding pending or threatened, or there shall have
been any development or prospective development involving particularly
the business or properties or securities of the Company or any of its
subsidiaries or the transactions contemplated by this Agreement, which,
in the reasonable judgment of the Underwriters, may materially and
adversely affect the Company's business or earnings and makes it
impracticable or inadvisable to offer or sell the Common Shares. Any
termination pursuant to this subsection (b) shall be without liability
on the part of the Underwriters to the Company or on the part of the
Company to the Underwriters (except for expenses to be paid or
reimbursed by the Company pursuant to Sections 6 and 8 hereof and except
to the extent provided in Section 10 hereof).
14. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or the
Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Common Shares sold hereunder and any termination of this Agreement.
15. Notices. All communications hereunder shall be in writing
and, if sent to the Representatives shall be mailed, delivered or telegraphed
and confirmed to you at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx Xxxxxxxxxxx, with a copy to Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxx; and if sent to the
Company shall be mailed, delivered or telegraphed and confirmed to
28
-34-
the Company at 00 Xxx Xxxx 0, #00-00/00, Xxxxxx Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxx
000000, Attention: President and Chief Operating Officer and 0000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Chief Executive Officer, with a copy to Fenwick &
West LLP, Xxx Xxxx Xxxx Xxxxxx, Xxxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxxxx.
Any of the parties hereto may change the address for receipt of communications
hereunder by giving notice to the others.
16. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto, and to the benefit of the officers and
directors and controlling persons referred to in Section 10, and in each case
their respective successors, personal representatives and assigns, and no other
person will have any right or obligation hereunder. No such assignment shall
relieve any party of its obligations hereunder. The term "successors" shall not
include any purchaser of the Common Shares as such from the Underwriters merely
by reason of such purchase.
17. Partial Unenforceability. The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
18. Applicable Law.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws (and not the laws pertaining to conflicts of
laws) of the State of New York.
(b) Any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United States of
America located in the City and County of San Francisco or the courts of the
State of California in each case located in the City and County of San Francisco
(collectively, the "Specified Courts"), and each party irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a "Related Judgment"), as to which
such jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such
party's address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive, to the maximum extent permitted by law,
any objection to the laying of venue of any suit, action or other proceeding in
the Specified Courts and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit, action or other proceeding
brought in any such court has been brought in an inconvenient forum. Each party
not located in the United States irrevocably appoints CT
29
-35-
Corporation System, which currently maintains a San Francisco office at 00
Xxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America, as
its agent to receive service of process or other legal summons for purposes of
any such suit, action or proceeding that may be instituted in any state or
federal court in the City and County of San Francisco.
(c) With respect to any Related Proceeding, each party
irrevocably waives, to the fullest extent permitted by applicable law, all
immunity (whether on the basis of sovereignty or otherwise) from jurisdiction,
service of process, attachment (both before and after judgment) and execution to
which it might otherwise be entitled in the Specified Courts, and with respect
to any Related Judgment, each party waives any such immunity in the Specified
Courts or any other court of competent jurisdiction, and will not raise or claim
or cause to be pleaded any such immunity at or in respect of any such Related
Proceeding or Related Judgment, including, without limitation, any immunity
pursuant to the United States Foreign Sovereign Immunities Act of 1976, as
amended.
Nothing in this Section 18 should be construed as a general
consent to service of process as to which any shareholder of the Company or any
other person may rely in connection with any suit or proceeding against the
Company.
19. General. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in several
counterparts, each one of which shall be an original, and all of which shall
constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and you.
30
-36-
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon it
will become a binding agreement between the Company and the Underwriters
including you, all in accordance with its terms.
Very truly yours,
FLEXTRONICS INTERNATIONAL LTD.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: President, Systems Group
The foregoing Underwriting
Agreement is hereby confirmed and
accepted by us in San Francisco,
California as of the date first above written.
Banc of America Securities LLC
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxx Partners LLC
Bear, Xxxxxxx & Co. Inc.
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxx Brothers Inc.
Xxxxxxxxx Xxxxxxxx, Inc.
Acting as Representatives of the Several
Underwriters named in the attached Schedule A
By BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
31
SCHEDULE A
Number of Firm
Common Shares
Underwriter to be Purchased
----------- ---------------
Banc of America Securities LLC..................................... 9,585,000
Xxxxxxx, Sachs & Co. .............................................. 4,455,000
Xxxxxxx Xxxxx Xxxxxx Inc. ......................................... 4,455,000
Xxxxxx Xxxxxx Partners LLC......................................... 3,105,000
Bear, Xxxxxxx & Co. Inc. .......................................... 1,350,000
Deutsche Banc Alex. Xxxxx Inc. .................................... 1,350,000
Xxxxxx Brothers Inc. .............................................. 1,350,000
Xxxxxxxxx Xxxxxxxx, Inc. .......................................... 1,350,000
----------
TOTAL: 27,000,000
==========
32
SCHEDULE B
Subsidiaries
Flextronics Holding USA, Inc.
Chatham Technologies, Inc.
Flextronics International (Zhuhai) Ltd.
Flextronics Industrial (Shenzhen) Co., Ltd.
Flextronics International Sweden AB
Flextronics International Kft. (Hungary)
Flextronics Manufacturing Mex., SA de CV
Flextronics USA, Inc.
Flextronics International Latin America (L), Ltd (Labuan)
33
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SCHEDULE C
Executive officers and directors subject to the Lock-Up Agreement
Xxxxxxx X. Xxxxx
Xxxxxx X. X. Xxxxx
Xxxxxxx XxXxxxxx
Xxxxxx X. Xxxxx
Xxxxx Xxxxxxx
Xxxxxxxx Xxxxxx
Xxxx Xxxxxx
34
Exhibit A
All captioned terms used herein but not defined shall have the
meaning ascribed to such term in the Underwriting Agreement.
Opinion of counsel for the Company to be delivered pursuant to
Section 7(c)(i) of the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any
supplements thereto at the Closing Date.
(1) the Company has been duly incorporated and is validly
existing in Singapore as a public company under the Companies Act, Chapter 50;
(2) Flextronics Singapore has been duly incorporated and is
validly existing in Singapore as a private company under the Companies Act,
Chapter 50 (Flextronics Singapore is in the process of being wound up
voluntarily by its shareholders);
(3) the Company has the necessary corporate power and authority
under Singapore law to own its properties and conduct its business as described
in the Registration Statement;
(4) all of the issued shares of Flextronics Singapore have been
duly and validly authorized and issued and are fully-paid;
(5) as far as we are aware, all the issued shares of Flextronics
Singapore and Flextronics Manufacturing (HK) Limited are beneficially owned by
the Company free and clear of all liens, encumbrances, equities, claims,
security interests, voting trusts or other defects of title whatsoever except as
disclosed in or specifically contemplated by the Prospectus, the Prospectus
Supplement and the documents listed in Schedule [ ] to this opinion. In
rendering our opinion in this paragraph [ ], we have relied solely on a
statement in the Certificate which certifies the foregoing matters set out in
this paragraph [ ], and nothing has come to our attention which gives us any
reason to believe that this statement in the Certificate is, as at the date
thereof, untrue, inaccurate or misleading in any respect and we have made no
independent investigation into any of the matters set out in this paragraph [ ]
(other than our review of the minute books of the Company made up to [ ], 2001,
copies of the share certificates representing all the issued shares in
Flextronics Singapore, the search made on [5th February], 2001 at the Registry
of Companies in Singapore against the Company, and our review of the documents
listed in Schedule [ ] to this opinion);
35
-2-
(6) as far as we are aware, all the issued shares of Flex
International Marketing (L) Ltd, Flextronics Malaysia Sdn Bhd, Flextronics
Industrial (Shenzhen) Limited and Flextronics Computer (Shekou) Ltd are
beneficially owned by Flextronics Singapore free and clear of all liens,
encumbrances, equities, claims, security interests, voting trusts or other
defects of title whatsoever except as disclosed in or specifically contemplated
by the Prospectus, the Prospectus Supplement and the documents listed in
Schedule 1 to this opinion. In rendering our opinion in this paragraph [ ], we
have relied solely on a statement in the Certificate which certifies the
foregoing matters set out in this paragraph [ ], and nothing has come to our
attention which gives us any reason to believe that this statement in the
Certificate is, as at the date thereof, untrue, inaccurate or misleading in any
respect and we have made no independent investigation into any of the matters
set out in this paragraph [ ] (other than our review of the minute books of
Flextronics Singapore made up to [ ], 2001, the search made on [5th February],
2001 at the Registry of Companies in Singapore against Flextronics Singapore,
and our review of the documents listed in Schedule [ ] to this opinion);
(7) as far as we are aware, neither the Company nor Flextronics
Singapore is in violation of (a) its Memorandum and Articles of Association or
of (b) any of the agreements specified in Schedule [ ] to this opinion which is
expressed to be governed by Singapore law and furnished to us by the Company;
and the Company and Flextronics Singapore are in compliance with all decrees,
statutes or governmental rules applicable in Singapore except where
non-compliance would not have a material adverse effect on the financial
position of the Company and its subsidiaries. In rendering our opinion in this
paragraph [ ], we have relied solely on the statements in the Certificate which
certify the foregoing matters set out in this paragraph [ ], and nothing has
come to our attention which gives us any reason to believe that these statements
in the Certificate are, as at the date thereof, untrue, inaccurate or misleading
in any respect and we have made no independent investigation into any of the
matters set out in this paragraph [ ].
(8) the authorized share capital of the Company as at 31st
December, 2000 is S$15,000,000 divided into 1,500,000,000 ordinary shares of
S$0.01 each ("Ordinary Shares") and all necessary and proper corporate
proceedings have been taken in order to authorize validly such authorized
Ordinary Shares; and (b) out of the authorized share capital of 1,500,000,000
Ordinary Shares, [ ] Ordinary Shares have been issued and are fully paid as at
31st December, 2000 based on the Transfer Agent's Certificate furnished to us by
the Transfer Agent (as defined below) [and the Certificate], and based on the
Company's Resolutions and assuming that such shares and the certificates
relating thereto were issued by Equiserve, L.P., the Registrar and Transfer
Agent of the Company in the State of Massachusetts, United States of America
(the "Transfer Agent") on behalf of the Company in accordance with the Company's
Resolutions and the Memorandum and Articles of Association of the Company, all
of the issued Ordinary Shares have been duly and validly authorized and issued,
are fully-paid and were not issued in violation of or subject to any pre-emptive
rights or
36
-3-
other rights to subscribe for or purchase any securities of the Company
contained in the Memorandum and Articles of Association of the Company or
provided by the laws of Singapore and the outstanding Ordinary Shares were
issued in compliance with all laws of Singapore that impose any restrictions or
requirements on, or otherwise regulate, the issue of securities. In rendering
our opinion on the total number of Ordinary Shares which have been issued and
are fully paid as at 31st December, 2000, we have relied solely on the statement
in the Transfer Agent's Certificate [, and in rendering our opinion on the total
number of Ordinary Shares which have been fully paid as at 31st December, 2000,
we have relied solely on a statement in the Certificate, and nothing has come to
our attention which gives us any reason to believe that the statements in each
of the Transfer Agent's Certificate and the Certificate are, as at the date
thereof, untrue, inaccurate or misleading in any respect and we have made no
independent investigation into any of the matters set out in this paragraph [ ]
relating to the number of Ordinary Shares which are issued and fully paid as at
31st December, 2000];
(9) the certificate evidencing the Firm Common Shares, in the
form previously approved by the Board of Directors of the Company for issue by
the Transfer Agent of the Company for the time being in the United States of
America, is in due and proper form under Singapore law, and when the Seal has
been affixed thereon in accordance with the Company's Articles of Association,
and delivered to each of the Underwriters or upon its order against payment of
the agreed consideration therefor in accordance with the provisions of the
Agreement, the Firm Common Shares represented thereby will be duly authorized
and validly issued and fully-paid, will not have been issued in violation of or
subject to any pre-emptive rights or other rights to subscribe for or purchase
securities of the Company contained in the Memorandum and Articles of
Association of the Company or provided by the laws of Singapore and will conform
in all respects to the description thereof contained in the Prospectus and the
Prospectus Supplement;
(10) the Company has the necessary corporate power under
Singapore law to enter into the Agreement and to sell and deliver the Firm
Common Shares to be sold by it to the Underwriters under the Agreement and has
taken all necessary corporate action required under the laws of Singapore to
authorize the execution and performance by it of the Agreement; [Mr. Xxxxxx X.
X. Xxxxx, President, Systems Group and Chief Financial Officer of the Company]
is duly authorized to execute and deliver the Agreement for and on behalf of the
Company; the Agreement constitutes legal, valid, binding and enforceable
obligations of the Company under the laws of Singapore (except that
enforceability may be limited as set out in paragraph [ ] below and except as to
those provisions relating to indemnity or contribution for liabilities arising
under the United States Securities Act of 1933, as amended, as to which we
express no opinion); and no approval, authorization, order, consent,
registration, filing, qualification, licence or permit of or with any court,
regulatory, administrative or other governmental body in Singapore is required
for the execution and delivery of the Agreement by the Company or the
consummation of the transactions contemplated by the Agreement;
37
-4-
(11) the execution and performance of the Agreement and the
consummation of the transactions therein contemplated do not violate (a) any of
the provisions of the Memorandum and Articles of Association of the Company or
Flextronics Singapore; or (b) any decree, statute or governmental rule
applicable in Singapore;
(12) as at [5th February], 2001 (a) we are not representing the
Company in any legal actions, suits or proceedings which are pending or
threatened against the Company and which may have a material adverse effect on
the financial position of the Company and its subsidiaries, and (b) we are not
aware of the existence of any such other legal actions, suits or proceedings in
Singapore. In rendering our opinion in part (b) of this paragraph [ ], we have
relied solely on a statement in the Certificate which certifies the foregoing
matters set out in part (b) of this paragraph [ ], and nothing has come to our
attention which gives us any reason to believe that this statement in the
Certificate is, as at the date thereof, untrue, inaccurate or misleading in any
respect and we have made no independent investigation into any of the matters
set out in part (b) of this paragraph [ ];
(13) the statements made in the Prospectus in the last sentence
of the section entitled "Enforcement of Civil Liabilities" and in the section
entitled "Description of Capital Shares" (except as provided in paragraph [ ]
below) to the extent they constitute summaries of the laws of Singapore, are, in
all material respects, accurate and fair summaries;
(14) the choice of the internal laws of the State of New York,
the United States of America as the law governing the Agreement is a valid and
binding choice of law under the laws of Singapore, except to the extent that any
term of the Agreement or provision of New York law applicable to the Agreement
is incompatible with the public policy of Singapore; and the consent to
jurisdiction as provided in Section 18(b) of the Agreement is valid and binding
upon the Company under the laws of Singapore; and
(15) no stamp or other issuance or transaction taxes or duties
and no capital gains, income, withholding of other taxes are payable by or on
behalf of the Underwriters to the government of Singapore or any subdivision or
taxing authority thereof or therein in connection with the sale and delivery by
the Company of the Firm Common Shares to or for the account of the Underwriters.
In rendering such opinion, such counsel may state that with
respect to all matters of the laws of the United States, they are relying on the
opinion of Fenwick & West LLP, provided that such counsel states they believe
that both you and they are justified in relying on such opinion.
38
Exhibit B
All captioned terms used herein but not defined shall have the
meaning ascribed to such term in the Underwriting Agreement.
Opinion of special counsel for the Company to be delivered
pursuant to Section 7(c)(ii) of the Underwriting Agreement.
(1) FIUI ("FIUI") has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
California; Flextronics Holding USA Inc. ("FHUI") has been duly incorporated and
is validly existing and in good standing as a corporation under the laws of the
State of Delaware; Chatham Technologies, Inc. ("Chatham", together with FIUI and
FHUI, the "U.S. Subs") has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware; the
Company and each of its subsidiaries is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction, if any, in the United
States in which the failure to so qualify would not have a material adverse
effect on the Company and its subsidiaries; and the U.S. Subs have full
corporate power and authority to own their properties and conduct their business
as currently conducted.
(2) To our knowledge, the issued and outstanding ordinary shares
of the Company, S$0.01 par value, issued after March 31, 2000 until the date
hereof, excluding the Ordinary Shares being issued and sold pursuant to the
Underwriting Agreement, were issued in compliance with United States federal and
California state securities laws; provided, however, that we express no opinion
as to the Company's compliance or noncompliance with applicable federal or state
antifraud statutes, rules and regulations in connection with such issuances.
(3) All of the issued and outstanding shares of the U.S. Subs
have been duly and validly authorized and issued and are fully paid and
nonassessable and, to our knowledge, are beneficially owned by the Company free
and clear of all liens, encumbrances, equities, claims, security interests,
voting trusts or other defects of title whatsoever, except for liens securing
obligations under the Credit Facility. When issued and sold at the Closing in
accordance with the terms of the Underwriting Agreement, the Ordinary Shares
will not have been issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities contained in any Material
Agreement of the Company's agreements and instruments identified in Appendix A
hereto, provided to us by the Company ("Material Agreements").
39
-2-
(4) Except for (a) options and rights granted pursuant to any of
the Company's share option and stock option plans and equity incentive plans
identified in Appendix B hereto, certified as true and complete by the Company
("Company Equity Plans") and (b) the Underwriting Agreement, there are no
outstanding options, warrants, or other rights calling for the issuance of, and
no commitments, plans or arrangements to issue, any shares of capital stock of
the Company or any security convertible or exchangeable for capital stock of the
Company.
(5) (a) Based solely upon the oral advice to us from the Staff of
the Commission, the Registration Statement has become effective under the Act,
and, to our knowledge, no stop order suspending the effectiveness of the
Registration Statement or preventing the use of the Prospectus has been issued
and no proceedings for that purpose have been instituted or are pending or, to
our knowledge, threatened or contemplated by the Commission; any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the
Rules and Regulations has been made in the manner and within the time period
required by such Rule 424(b);
(b) The Registration Statement, the Prospectus (including any
document incorporated by reference therein) and each amendment or supplement
thereto (other than financial statements, any financial data and schedules
included therein as to which in each case we express no opinion) comply as to
form in all material respects with the requirements of the Act, the Rules and
Regulations and the Exchange Act;
(c) To our knowledge, there are no franchises, leases, contracts,
agreements or documents of a character required to be disclosed in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not disclosed or filed or incorporated by
reference, as required; and
(d) To our knowledge, there are no legal or governmental actions,
suits or proceedings pending or threatened against the Company that are required
to be described in the Prospectus that are not described as required.
(6) The Company has full corporate power and authority to enter
into the Underwriting Agreement and to sell and deliver the Ordinary Shares to
be sold by it to the Underwriters; the Underwriting Agreement has been duly and
validly authorized by all necessary corporate action by the Company, has been
duly and validly executed and delivered by and on behalf of the Company, and is
a valid and binding agreement of the Company in accordance with its terms
(subject to the limitations regarding enforceability of obligations set forth
elsewhere in this opinion); and no approval, authorization, order, consent,
registration, filing, qualification, license or permit of or with any court,
regulatory, administrative or other governmental body is required under United
States federal or California law for the execution
40
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and delivery of the Underwriting Agreement by the Company or the consummation of
the transactions contemplated by the Underwriting Agreement to be performed as
of the date hereof (other than such as may be required under Blue Sky laws, as
to which we express no opinion, under federal securities laws, as to which we
express no opinion, or under the rules and regulations of the National
Association of Securities Dealers, Inc., as to which we express no opinion,
pursuant to this paragraph 6).
(7) The execution and performance of the Underwriting Agreement
and the consummation of the transactions therein contemplated do not conflict
with, result in the breach of, or constitute, either by itself or upon notice or
the passage of time or both, a default under, any Material Agreement, or violate
any of the provisions of the Certificate of Incorporation, the Memorandum of
Association or New Articles of the Company, the Articles of Incorporation or
Bylaws of FIUI or the Certificate of Incorporation or Bylaws of FHUI or Chatham,
or violate any United States statute, rule or regulation, or any United States
judgment, decree or order known to us of any U.S. court or U.S. governmental
body having jurisdiction over the Company or the U.S. Subs or any of their
respective property.
(8) To our knowledge, the U.S. Subs are not in violation of their
Articles of Incorporation or Certificate of Incorporation, as applicable.
(9) Each document filed pursuant to the Exchange Act (other than
the exhibits, financial statements, financial data and supporting schedules
included therein) as to which in each case we express no opinion) incorporated
or deemed to be incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with the Exchange Act.
In rendering such opinion, such counsel may state that with
respect to all matters of the laws of Singapore or pertaining to the Memorandum
or Articles of Association of the Company, they are relying solely on the
opinion of Xxxxx & Xxxxxxxx.
Fenwick & West LLP shall also include a statement to the effect
that nothing has come to such counsel's attention that would lead such counsel
to believe that, either at the effective date of the Registration Statement or
at the applicable Closing Date, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, contained or contains any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Fenwick & West LLP shall also provide a separate opinion, dated
the Closing Date, to the effect that the statements in the Prospectus under
"Taxation," to the extent they constitute summaries of tax laws of the United
States, are accurate, complete and fair summaries as of the applicable Closing
Date.
41
Exhibit C
Form of Lock-Up
Banc of America Securities LLC
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxx Partners LLC
Bear, Xxxxxxx & Co. Inc.
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxx Brothers Inc.
Xxxxxxxxx Xxxxxxxx, Inc.
As Representatives of the Several Underwriters
c/o Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
RE: Public offering of the Ordinary Shares of Flextronics International Ltd.
(the "Company")
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain
Ordinary Shares of the Company ("Ordinary Shares") or securities convertible
into or exchangeable or exercisable for Ordinary Shares. The Company proposes to
carry out a public offering of Ordinary Shares (the "Offering") for which you
will act as the representatives (the "Representatives") of the underwriters. The
undersigned recognizes that the Offering will be of benefit to the undersigned
and will benefit the Company by, among other things, raising additional capital
for its operations. The undersigned acknowledges that you and the other
underwriters are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering into underwriting arrangements with the Company with respect to the
Offering.
In consideration of the foregoing, the undersigned hereby agrees
that the undersigned will not, without the prior written consent of Banc of
America Securities LLC (which consent may be withheld in its sole discretion),
directly or indirectly, sell, offer, contract or grant any option to sell
(including, without limitation, any short sale), pledge, transfer, establish an
open "put equivalent position" within the meaning of Rule 16a-l(h) under the
Securities Exchange Act of 1934, as amended, or otherwise dispose of any
Ordinary Shares, options or warrants to acquire ordinary Shares, or securities
exchangeable or exercisable for or convertible into Ordinary Shares currently or
hereafter owned either of record or beneficially
42
-2-
(as defined in Rule 13d-3 under Securities Exchange Act of 1934, as amended) by
the under signed, or publicly announce the undersigned's intention to do any of
the foregoing, for a period commencing on the date hereof and continuing to a
date 75 days after the first date any of the Ordinary Shares to be sold in the
Offering are sold to the public; provided, however, that the undersigned may
sell up to an aggregate of ___________ Ordinary Shares without the prior written
consent of Banc of America Securities LLC; provided further that the undersigned
may transfer his Ordinary Shares to immediate family members or to a trust for
the benefit of the undersigned or the undersigned's immediate family, provided
that each transferee or other recipient executes a counterpart copy of this
agreement. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent and registrar against
the transfer of Ordinary Shares or securities convertible into or exchangeable
or exercisable for Ordinary Shares held by the undersigned except in compliance
with the foregoing restrictions.
This agreement is irrevocable and will be binding on the
undersigned and the respective successors, heirs, personal representatives, and
assigns of the undersigned.
Dated: January , 2001
----------------------------------------
Printed Name of Holder
By:
-------------------------------------
Signature
----------------------------------------
Printed Name of Person Signing
(and indicate capacity of person signing if signing
as custodian, trustee, or on behalf of an entity)
