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EXHIBIT 1.01
8,600,000 SHARES
FLEXTRONICS INTERNATIONAL LTD.
ORDINARY SHARES
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UNDERWRITING AGREEMENT
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February 24, 0000
Xxxx xx Xxxxxxx Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Dear Sirs:
1. Introductory. Flextronics International Ltd., a Singapore company
(the "Company"), proposes to issue and sell to you 8,600,000 of its authorized
but unissued Ordinary Shares S$.01 par value each in the capital of the Company
(the "Ordinary Shares"). The 8,600,000 shares to be sold by the Company are
referred to as 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:
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(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.
333-87139), including a prospectus relating to the registration of the Common
Shares (the "Registration Statement"). The Registration Statement has been
declared effective by the Commission under the 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.
(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
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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 Underwriter, directly or through the Underwriter,
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 delivered to the Underwriter 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 in Exhibit 21.1 to the Company's Registration Statement on
Form S-4 (File No. 333-9439), filed with the Commission on January 19, 2000. 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, except for jurisdictions in which the failure to so
qualify would not have a material adverse effect upon the Company or the
subsidiary; and no proceedings has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification.
(d) The Company has an authorized share capital as set forth
under the heading "Capitalization" in the Prospectus and issued share capital as
of December 31, 1999 as set forth under the heading "Capitalization" in the
Prospectus; the issued and outstanding Ordinary Shares have been duly authorized
and validly issued, are fully paid, have been issued in compliance with all
federal and state securities laws, whether of Singapore, the United States or
otherwise, were not issued in violation of or subject to any preemptive rights
or other rights to subscribe for or purchase securities, and conform to the
description thereof contained in the Prospectus. All issued and outstanding
shares of capital stock of each subsidiary of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. Except as
disclosed in the Prospectus and the financial statements of the Company, and the
related notes thereto, included in the Prospectus, neither the Company nor any
subsidiary has outstanding any options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
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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 Underwriter 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 Underwriter, which
will occur prior to the Closing.
(f) The Company has full legal right, power and authority to
enter into this Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company in accordance with its
terms. The making and performance of this Agreement by the Company and the
consummation of the transactions herein contemplated will not violate any
provisions of the Memorandum and Articles of Association, Certificate of
Incorporation, or other organizational documents, of the Company or any of its
subsidiaries, and will not conflict with, result in the breach or violation of,
or constitute, either by itself or upon notice or the passage of time or both, a
default under any agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of its respective properties may be bound or affected (except as to
conflicts, breaches, violations or defaults of any of the foregoing that
individually or in the aggregate would not be material to the Company), any
statute or any authorization, judgment, decree, order, rule or regulation of any
court or any regulatory body, administrative agency or other governmental body
applicable to the Company or any of its subsidiaries or any of their respective
properties. No consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body is required
for the execution and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement, except for compliance with the Act,
the Blue Sky laws applicable to the public offering of the Common Shares by the
Underwriter and, if applicable, the clearance of such offering with the National
Association of Securities Dealers, Inc. (the "NASD").
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(g) Xxxxxx Xxxxxxxx LLP, who have expressed their opinion with
respect to the consolidated financial statements and schedules filed with the
Commission as a part of the Registration Statement and included in the
Prospectus and in the Registration Statement, are independent accountants as
required by the Act, the Rules and Regulations and the Exchange Act.
(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 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 presents 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
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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.
(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 the exercise of options disclosed in the
Prospectus) or indebtedness material to the Company and its subsidiaries (other
than in the ordinary course of business); and (v) there has not been any
material adverse change in the condition (financial or otherwise), business,
properties, results of operations or, to the best of the Company's knowledge,
prospects of the Company and its subsidiaries.
(n) Except as disclosed in or specifically contemplated by the
Prospectus, the Company and its subsidiaries have sufficient trademarks, trade
names, patent rights, mask works, copyrights, licenses, approvals and
governmental authorizations to conduct their businesses as now conducted; the
expiration of any trademarks, trade names, patent rights, mask works,
copyrights, licenses, approvals or
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governmental authorizations would not have a material adverse effect on the
condition (financial or otherwise), business, results of operations or, to the
best of the Company's knowledge, prospects of the Company or its subsidiaries;
and the Company has no knowledge of any material infringement by it or its
subsidiaries of trademark, trade name rights, patent rights, mask works,
copyrights, licenses, trade secret or other similar rights of others, and there
is no claim being made against the Company or its subsidiaries regarding
trademark, trade name, patent, mask work, copyright, license, trade secret or
other infringement which could have a material 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) 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.
(u) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Ordinary Shares
to facilitate the sale or resale of the Common Shares.
(v) Subject to the approval of the Underwriter 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.
(w) The Ordinary Shares (including the Common Shares) are
registered pursuant to Section 12(g) of the Exchange Act and are listed on the
Nasdaq National Market, and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Ordinary
Shares under the Exchange Act or delisting the Ordinary Shares from the Nasdaq
National Market, nor has the Company received any notification that the
Commission or the NASD is contemplating terminating such registration or
listing.
(x)The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act, and, when read together with the
other information in the Prospectus, at the time the Registration Statement and
any amendments thereto become effective and at the 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 Underwriter shall be deemed to be a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
3. Representations and Warranties of the Underwriter. The Underwriter
represents and warrants 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 under "Underwriter" in the Prospectus was
furnished to the Company by and on behalf of the Underwriter 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. On the basis of the
representations, warranties and agreements herein contained, and upon the terms
but subject to the conditions herein set forth, (i) the Company agrees to issue
and sell to the Underwriter an aggregate of 8,600,000 Common Shares and (ii) the
Underwriter agrees
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to purchase such shares from the Company. The purchase price per Common Share to
be paid by the Underwriter to the Company shall be $57.50 per share.
Payment for the Common Shares to be sold by the Company shall be made at
6:00 a.m. on February 29, 2000, or such other time and date not later than 10:30
a.m. on the later of the fifth full business day following the first date that
the shares are released by you for sale to the public or the date that is 48
hours after the date that the Prospectus has been recirculated, if applicable,
(the "Closing Date") by wire transfer of immediately available funds to the
order of the Company. The Company shall deliver, or cause to be delivered, to
the representative for the account of the Underwriter certificates for the
Common Shares to be sold by it at the Closing Date, 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
Underwriter shall have requested at least two full business days prior to the
Closing Date and shall be made available for inspection on the business day
preceding the Closing Date at a location in New York City as the Underwriter 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
Underwriter.
The Underwriter hereby advises the Company that it intends to offer for
sale to the public, as described in the Prospectus, the Common Shares as soon
after this Agreement has been executed as the Underwriter, in its sole judgment,
has determined is advisable and practicable. The Underwriter hereby further
advises the Company that the Underwriter will offer the Common Shares for sale
to the public initially at the price set forth in the cover page of the
Prospectus.
Not later than 12:00 Noon San Francisco time on the second business day
following later of the date of this Agreement or the date the Common Shares are
released by the Underwriter for sale to the public, the Company shall deliver,
or cause to be delivered, copies of the Prospectus in such quantities and at
such places as the Underwriter 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
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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 the Prospectus which in your judgment may be necessary or advisable
to enable you 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
Underwriter is required to deliver a prospectus after such nine-month period,
the Company upon request, but at the expense of the Underwriter, 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
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documents (including any documents incorporated or deemed incorporated by
reference therein) in each case as soon as available and in such quantities as
you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in
order to qualify or register the Common Shares for sale under (or obtain
exemptions from the application of) the Blue Sky laws of such jurisdictions as
you designate (including those of Canada) and under the applicable securities
laws of such other nations as you may designate, will comply with such laws and
will continue such qualifications, registrations and exemptions in effect so
long as reasonably required for the distribution of the Common Shares. The
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such jurisdiction where it is not
presently qualified. The Company will advise you promptly of the suspension of
the qualification or registration of (or any such exemption relating to) the
Common Shares for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the event of
the issuance of any order suspending such qualification, registration or
exemption, the Company, with your cooperation, will use its best efforts to
obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will
furnish to the Underwriter: (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 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.
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(j) During such period as a prospectus is required by law to be
delivered in connection with sales by the 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 Underwriter 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 Underwriter's 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 Underwriter shall pay all of its own
expenses, including the fees and disbursements of its counsel (excluding those
relating to qualification, registration or exemption under the Blue Sky laws
(including those of Canada) and under the applicable securities laws of such
other nations as you may designate, and the Blue Sky memorandum).
7. Conditions of the Obligations of the Underwriter. The obligations of
the Underwriter to purchase and pay for the Common Shares on the 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 Closing
Date, 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
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been filed in the manner and within the time period required by Rule 424(b) of
the Rules and Regulations; and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or shall
be pending or, to the knowledge of the Company or you, shall be contemplated by
the Commission; and any request of the Commission for inclusion of additional
information in 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 which makes it impractical or inadvisable in the judgment of the
Underwriter 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) (A) An opinion of Xxxxx & Xxxxxxxx, counsel for the
Company, addressed to the Underwriter and dated the Closing Date, substantially
to the effect that:
(1) Each of the Company and its Singapore
subsidiary has been duly incorporated and is validly existing as a corporation
(public corporation in the case of the Company) under the laws of its
jurisdiction of incorporation, and has full corporate power and authority to own
its properties and conduct its business as described in the Registration
Statement;
(2) The authorized capital stock of the Company
is as set forth under the caption "Capitalization" in the Prospectus, and the
issued and outstanding capital stock as of December 31, 1999 is as set forth
under such caption; all
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necessary and proper corporate proceedings have been taken in order to authorize
validly such authorized Ordinary Shares; all outstanding Ordinary Shares have
been duly and validly issued, are fully paid and nonassessable, and were not
issued in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase any securities contained in the Memorandum and
Articles of Association of the Company or Singapore law; the outstanding
Ordinary Shares were issued in compliance with all laws of Singapore, that
impose any restrictions or requirements on, or otherwise regulate, the sale of
securities; and the Ordinary Shares conform to the description thereof contained
in the Prospectus;
(3) All of the issued and outstanding shares of
the Company's Singapore subsidiary have been duly and validly authorized and
issued and are fully paid; to such counsel's knowledge all shares of the
Company's subsidiaries are owned beneficially by the Company free and clear of
all liens, encumbrances, equities, claims, security interests, voting trusts or
other defects of title whatsoever, except as described in the Registration
Statement;
(4) The certificates evidencing the Common
Shares to be delivered hereunder are in due and proper form under Singapore law,
and when the Company's seal thereon has been affixed in accordance with the
Company's Memorandum and Articles of Association, and delivered to you or upon
your order against payment of the agreed consideration therefor in accordance
with the provisions of this Agreement, the Ordinary Shares represented thereby
will be duly authorized and validly issued and fully paid, will not have been
issued in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities contained in the Memorandum and Articles of
Association of the Company or arising under Singapore law and will conform in
all respects to the description thereof contained in the Prospectus;
(5) Except as disclosed in or specifically
contemplated by the Prospectus, to such counsel's knowledge, there are no
outstanding options, warrants or other rights calling for the issuance of, and
no commitments, plans or arrangements to issue, any shares of capital stock of
the Company or any security convertible into or exchangeable for capital stock
of the Company;
(6) To the best of such counsel's knowledge,
there are no legal or governmental actions, suits or proceedings pending against
the Company in Singapore which are required to be described in the Prospectus
which are not described as required;
(7) The Company has full right, power and
authority under Singapore law to enter into this Agreement and to sell and
deliver the Common Shares to be sold by it to the Underwriter; this Agreement
has been duly and validly authorized by all necessary corporate action by the
Company, has been duly and validly executed and delivered by and on behalf of
the Company, and is a valid and binding agreement of the Company in accordance
with its terms, except as enforceability
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may be limited by general equitable principles, bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and except as to those provisions relating to indemnity or contribution for
liabilities arising under the Act as to which no opinion need be expressed; and
no approval, authorization, order, consent, registration, filing, qualification,
license or permit of or with any court, regulatory, administrative or other
governmental body in Singapore is required for the execution and delivery of
this Agreement by the Company or the consummation of the transactions
contemplated by this Agreement;
(8) The execution and performance of this
Agreement and the consummation of the transactions herein contemplated will not
violate any of the provisions of the Memorandum and Articles of Association of
the Company or its Singapore subsidiary or, so far as is known to such counsel,
violate any decree, statute or rule of Singapore;
(9) To such counsel's knowledge, neither the
Company nor its Singapore subsidiary is in violation of its Memorandum and
Articles of Association, or other organizational documents, or in breach of or
default with respect to any provision of any agreement, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument known to such
counsel to which the Company or any such subsidiary is a party or by which it or
any of its properties may be bound or affected, except where such default would
not materially adversely affect the Company and its subsidiaries; and, to such
counsel's knowledge, the Company and its Singapore subsidiary are in compliance
with all decrees, statutes or governmental rule of Singapore, to which they are
subject, except where noncompliance would not materially adversely affect the
Company and its subsidiaries;
(10) The statements made in the Prospectus under
"Enforcement of Civil Liabilities" and "Description of Capital Shares", " to the
extent they constitute summaries of the laws of Singapore, are accurate,
complete and fair summaries;
(11) The choice of California law as the law
governing this Agreement is valid and binding under the laws of Singapore,
except to the extent that any term of this Agreement or provision of California
law applicable to this Agreement is incompatible with the public policy of
Singapore; the consent to jurisdiction as provided in Section 18 of this
Agreement is valid and binding upon the Company under the laws of Singapore; and
(12) No stamp or other issuance or transaction
taxes or duties and no capital gains, income, withholding or other taxes are
payable by or on behalf of the Underwriter to the government of Singapore or any
subdivision or taxing authority thereof or therein in connection with (a) the
sale and delivery by the Company of the Common Shares to or for the account of
the Underwriter and (b) the sale and delivery of the Common Shares inside or
outside of Singapore by the Underwriter to the
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purchasers thereof (excluding any Singapore income tax on the income of the
Underwriter if its net income is subject to tax by the government of Singapore).
In rendering such opinion, such counsel may state that with respect to
all matters of the laws of the United States, they are relying on the opinion of
Fenwick & West LLP, provided that such counsel states they believe that both you
and they are justified in relying on such opinion.
(B) An opinion of Fenwick & West LLP, special counsel to
the Company, addressed to the Underwriter and dated the Closing Date,
substantially to the effect that:
(1) Flextronics International (USA), Inc. (the
"U.S. Sub") has been duly incorporated and is validly existing and in good
standing as a corporation under the laws of the jurisdiction of its
incorporation; the Company and each of its subsidiaries is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction, if any,
in the United States in which the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries; and the U.S. Sub
has full corporate power and authority to own its properties and conduct its
business as currently conducted;
(2) To such counsel's knowledge, the issued and
outstanding Ordinary Shares issued after August 2, 1995 were issued in
compliance with United States federal and California securities laws;
(3) All of the issued and outstanding shares of
the U.S. Sub have been duly and validly authorized and issued and are fully paid
and nonassessable and to such counsel's knowledge are owned beneficially by the
Company free and clear of all liens, encumbrances, equities, claims, security
interests, voting trusts or other defects of title whatsoever, except for liens
securing obligations under the Company's credit facility. 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 agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument listed on an appendix to such opinion, and reasonably acceptable to
counsel to the Underwriter;
(4) Except for options granted under employee
stock option or purchase plans or shares issuable in connection with
acquisitions, each as disclosed in or specifically contemplated by the
Prospectus, to such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable for capital stock of the Company;
(5) a. The Registration Statement has become
effective under the Act, and, to such counsel's knowledge, no stop order
suspending the
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effectiveness of any Registration Statement or preventing the use of the
Prospectus has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated by the Commission; any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the
Rules and Regulations has been made in the manner and within the time period
required by such Rule 424(b);
b. The Registration Statement, the
Prospectus and each amendment or supplement thereto (except for the financial
statements and schedules included therein as to which such counsel need express
no opinion) comply as to form in all material respects with the requirements of
the Act, the Rules and Regulations and the Exchange Act;
c. To such counsel's knowledge, there are no
franchises, leases, contracts, agreements or documents of a character required
to be disclosed in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not disclosed or filed or
incorporated by reference, as required;
d. To such counsel's knowledge, there are no
legal or governmental actions, suits or proceedings pending or threatened
against the Company which are required to be described in the Prospectus which
are not described as required;
(6) The Company has full right, power and
authority to enter into this Agreement and to sell and deliver the Ordinary
Shares to be sold by it to the Underwriter; this Agreement has been duly and
validly authorized by all necessary corporate action by the Company, has been
duly and validly executed and delivered by and on behalf of the Company, and is
a valid and binding agreement of the Company in accordance with its terms,
except as enforceability may be limited by general equitable principles,
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and except as to those provisions relating to
indemnity or contribution for liabilities arising under the Act as to which no
opinion need be expressed; and no approval, authorization, order, consent,
registration, filing, qualification, license or permit of or with any court,
regulatory, administrative or other governmental body is required under United
States federal or California law for the execution and delivery of this
Agreement by the Company or the consummation of the transactions contemplated by
this Agreement, except such as have been obtained and are in full force and
effect under the Act and such as may be required under applicable Blue Sky laws
in connection with the purchase and distribution of the Common Shares by the
Underwriters and the clearance of such offering with the NASD;
(7) The execution and performance of this
Agreement and the consummation of the transaction herein contemplated will not
conflict with, result in the breach of, or constitute, either by itself or upon
notice or the passage of time or both, a default under, any agreement, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
listed on an appendix to such opinion, and
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reasonably acceptable to counsel to the Underwriter, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of its or their property may be bound or affected which is
material to the Company and its subsidiaries, or violate any of the provisions
of the Memorandum and Articles of Association, or other organizational
documents, of the Company or the U.S. Sub or, so far as is known to such
counsel, violate any statute, judgment, decree, order, rule or regulation of any
court or governmental body having jurisdiction over the Company or the U.S. Sub
or any of their respective property; and
(8) The U.S. Sub is not in violation of its
Articles or Certificate of Incorporation, as the case may be; and
(9) Each document filed pursuant to the Exchange
Act (other than the financial statements and supporting schedules included
therein, as to which no opinion need be rendered) and incorporated or deemed to
be incorporated by reference in the Prospectus complied when so filed as to form
in all material respects with the Exchange Act.
In rendering such opinion, such counsel may state that with respect to
all matters of the laws of Singapore or pertaining to the Memorandum and
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 Closing Date.
(ii) Such opinion or opinions of Howard, Rice,
Nemerovski, Canady, Xxxx & Xxxxxx, a Professional Corporation, and Xxxxx Xxxxxx
& Xxxxxxxxxxx, counsel for the Underwriter, 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.
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(iii) A certificate of the Company executed by the
President, Systems Group and the President of the Americas 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 either Registration Statement or any amendment thereto; no stop
order suspending the effectiveness of either 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,
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contingent or indirect, made any change in its capital stock, made any material
change in its short-term debt or funded debt or repurchased or otherwise
acquired any of the Company's capital stock; and the Company has not declared or
paid any dividend, or made any other distribution, upon its outstanding capital
stock payable to shareholders of record on a date prior to the 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).
(iv) On the Closing Date a letter addressed to you, from
Xxxxxx Xxxxxxxx LLP, independent accountants, in form and substance satisfactory
to the Underwriter.
(v) On the date hereof, the Company shall have furnished
to the Underwriter an agreement in the form of Exhibit A hereto from each of the
executive officers and directors of the Company, and such agreement shall be in
full force and effect on the Closing Date. During the lock-up period set forth
in Exhibit A hereto, the executive officers and directors of the Company may
sell in the aggregate 300,000 Ordinary Shares.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin, a Professional Corporation,
counsel for the Underwriter. 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 Underwriter's 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 Underwriter or the Company except for the expenses
to be paid or reimbursed by the Company pursuant to Sections 6 and 8 hereof and
except to the extent provided in Section 10 hereof.
8. Reimbursement of Underwriter's 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 Underwriter of the Common Shares at the
Closing is not consummated because of any refusal, inability or failure on the
part of the Company to
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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 the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Act against any losses, claims, damages, liabilities or expenses,
joint or several, to which the 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 Underwriter and each such controlling person for any legal
and other expenses as such expenses are reasonably incurred by the Underwriter
or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, the Basic
Prospectus, the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with the information furnished to the Company pursuant to
Section 3 hereof; and provided further, that the indemnity provided in this
Section 10(a) with respect to any Basic Prospectus shall not inure to the
benefit of the Underwriter 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
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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 Underwriter 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 Underwriter for such expenses
and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Underwriter shall
promptly return it together with interest, compounded daily, determined on the
basis of the prime rate (or other commercial lending rate for borrowers of the
highest credit standing) announced from time to time by Bank of America, N.A.,
San Francisco, California (the "Prime Rate"). Any such interim reimbursement
payments which are not made to the Underwriter within 30 days of a request for
reimbursement, shall bear interest at the Prime Rate from the date of such
request. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Underwriter 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 Underwriter), insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated below)
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, 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 extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Basic Prospectus, the Prospectus, or any amendment
or supplement thereto, in reliance upon and in conformity with the 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), the Underwriter agrees that, as an interim measure during the
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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 pursuant to Section 3 hereof, it will
reimburse the Company (and, to the extent applicable, each officer, director or
controlling person) on a quarterly basis for all reasonable legal or other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
Underwriter's 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 Underwriter 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
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
such
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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 Underwriter, 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
Underwriter, 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 Underwriter, 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 Underwriter
(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 Underwriter as the underwriting commissions received by it bears to
the total of such amounts paid to the Company and received by the Underwriter as
underwriting commissions. The relative fault of the Company, on the one hand,
and the Underwriter, 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 Underwriter, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in subparagraph (c) of this Section 10, any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
subparagraph (c) of this Section 10 with respect to notice of commencement of
any action shall apply if a claim for contribution is to be made under this
subparagraph (d); provided, however, that no additional notice shall be required
with respect to any action for which notice has been
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given under subparagraph (c) for purposes of indemnification. The Company and
the Underwriter 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 Underwriter shall not be
required to contribute any amount in excess of the amount of the total
underwriting commissions received by the Underwriter in connection with the
Common Shares underwritten by it and distributed to the public. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
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. [Intentionally omitted]
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
Underwriter (except for the expenses to be paid or reimbursed by the Company
pursuant to Sections 6 and 8 hereof and except to the extent provided in Section
10 hereof) or of the Underwriter to the Company (except to the extent provided
in Section 10 hereof).
(b) This Agreement may also be terminated by you prior to the
Closing Date by notice to the Company (i) if additional material governmental
restrictions, not in
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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 Underwriter, 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 Underwriter, 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
Underwriter to the Company or on the part of the Company to the Underwriter
(except for expenses to be paid or reimbursed by the Company pursuant to
Sections 6 and 8 hereof and except to the extent provided in Section 10 hereof).
14. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, of its officers and of the Underwriter 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 Underwriter or the Company or any of
its or their partners, officers or directors or any controlling person, as the
case may be, and will survive delivery of and payment for the Common Shares sold
hereunder and any termination of this Agreement.
15. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriter shall be mailed, delivered or telegraphed and confirmed
to you at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxx, with a copy to Howard, Rice, Nemerovski, Canady, Xxxx &
Xxxxxx, A Professional Corporation, Three Xxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxx
Xxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxxxxx; and if sent to the Company
shall be mailed, delivered or telegraphed and confirmed to 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
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Michaels. 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 Underwriter 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 California.
(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 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.
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(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.
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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 Underwriter
including you, all in accordance with its terms.
Very truly yours,
FLEXTRONICS INTERNATIONAL LTD.
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxx
The foregoing Underwriting
Agreement is hereby confirmed and
accepted by us in San Francisco,
California as of the date first above written.
By BANC OF AMERICA SECURITIES LLC
By: /s/ XXXXXXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
30
EXHIBIT A
FORM OF LOCK-UP
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 underwriter. 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 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 your prior written consent (which consent may be
withheld in your 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-1(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 (as defined in Rule 13d-3 under Securities Exchange Act of 1934, as
amended) by the undersigned, 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 90 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
your prior written consent. 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.
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This agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the
undersigned.
Dated: February __, 2000
------------------------------------------------------------
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)
3
