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EXHIBIT 1.2
437,500 SHARES
FLEXTRONICS INTERNATIONAL LTD.
ORDINARY SHARES
_____________________
INTERNATIONAL
UNDERWRITING AGREEMENT
_____________________
______ __, 1997
UBS LIMITED
XXXXXXXXXX SECURITIES
XXXXX & COMPANY
c/x XXXXXXXXXX SECURITIES
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Dear Sirs:
1. Introductory. Flextronics International Ltd., a Singapore
company (the "Company"), proposes to issue and sell 437,500 of its authorized
but unissued Ordinary Shares, S$.01 par value each in the capital of the
Company (the "Ordinary Shares"), to the several underwriters named in Schedule
A annexed hereto (the "International Managers"), for whom you are acting as
Lead Managers. The 437,500 shares to be sold by the Company are referred to as
the "Firm International Common Shares." In addition, the Company proposes to
grant to the International Managers an option to purchase up to 65,625
additional Ordinary Shares (the "Optional International Common Shares"), as
provided in Section 4 hereof. The Firm International Common Shares and, to the
extent such option is exercised, the Optional International Common Shares are
hereinafter collectively referred to as the "International Common Shares."
It is understood that the Company is concurrently entering into
an agreement dated the date hereof (the "U.S. Underwriting Agreement")
providing for (i) the offering by the Company of 1,312,500 Ordinary Shares (the
"Firm U.S. Common Shares") through arrangements with certain underwriters in
the United States and Canada (the "U.S. Underwriters"), and (ii) the grant by
the Company to the U.S. Underwriters of an option to purchase up to 196,875
additional Ordinary Shares solely to cover over-allotments, if any. It is
understood that the Company is not obligated to sell, and the
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International Managers are not obligated to purchase, the Firm International
Common Shares unless all of the Firm U.S. Common Shares are contemporaneously
purchased by the U.S. Underwriters.
The U.S. Underwriters and the International Managers will
concurrently enter into an Intersyndicate Agreement of even date herewith
providing for the coordination of certain transactions among the International
Managers and the International Managers under the direction of Xxxxxxxxxx
Securities.
You have advised the Company that the International Managers
propose to make a public offering of the International Common Shares on the
effective date of the registration statement hereinafter referred to, or as
soon thereafter as in your judgment is advisable.
The Company hereby confirms its agreement with respect to the
purchase of the International Common Shares by the International Managers as
follows:
2. Representations and Warranties of the Company. The Company
hereby represents, warrants and covenants to each International Manager as
follows:
(a) A registration statement on Form S-3 (File No.
333-_____) with respect to the International Common Shares has been prepared by
the Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has been filed with the Commission. The Company has prepared
and has filed or proposes to file prior to the effective date of such
registration statement an amendment or amendments to such registration
statement, which amendment or amendments have been or will be similarly
prepared. There have been delivered to you four signed copies of such
registration statement and amendments, together with four copies of each
exhibit filed therewith. Conformed copies of such registration statement and
amendments (but without exhibits) and of the related preliminary prospectus
have been delivered to you in such reasonable quantities as you have requested
for each of the International Managers. The Company will next file with the
Commission one of the following: (i) prior to effectiveness of such
registration statement, a further amendment thereto, including the form of
final prospectus, (ii) a final prospectus in accordance with Rules 430A and
424(b) of the Rules and Regulations, or (iii) a term sheet (the "Term Sheet")
as described in and in accordance with Rules 434 and 424(b) of the Rules and
Regulations. As filed, the final prospectus, if one is used, or the Term Sheet
and Preliminary Prospectus, if a final prospectus is not used, shall include
all Rule 430A Information and, except to the extent that you shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the date and time that this Agreement was executed
and delivered by the parties hereto, or, to the extent not completed at such
date and time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus) as
the Company shall have previously advised you in writing would be included or
made therein.
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The term "Registration Statement" as used in this Agreement shall
mean such registration statement at the time such registration statement
becomes effective and, in the event any post-effective amendment thereto
becomes effective prior to the First Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended; provided, however,
that such term shall also include (i) all documents incorporated or deemed to
be incorporated by reference therein pursuant to the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Exchange Act"), (ii) all Rule 430A Information deemed to be
included in such registration statement at the time such registration statement
becomes effective as provided by Rule 430A of the Rules and Regulations, and
(iii) a registration statement, if any, filed pursuant to Rule 462(b) of the
Rules and Regulations relating to the Common Shares. The term "Preliminary
Prospectus" shall mean any preliminary prospectus referred to in the preceding
paragraph and any preliminary prospectus included in the Registration Statement
at the time it becomes effective that omits Rule 430A Information. The term
"Prospectus" as used in this Agreement shall mean either (i) the prospectus
relating to the International Common Shares in the form in which it is first
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations
or, (ii) if a Term Sheet is not used and no filing pursuant to Rule 424(b) of
the Rules and Regulations is required, the form of final prospectus included in
the Registration Statement at the time such registration statement becomes
effective, or (iii) if a Term Sheet is used, the Term Sheet in the form in
which it is first filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations, together with the Preliminary Prospectus included in the
Registration Statement at the time it becomes effective. The term "Rule 430A
Information" means information with respect to the International Common Shares
and the offering thereof permitted to by omitted from Registration Statement
when it becomes effective pursuant to Rule 430A of the Rules and Regulations.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
(b) The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus has conformed in all material respects to the requirements of the
Act and the Rules and Regulations and, as of its date, has not included any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and at the time the Registration
Statement becomes effective, and at all times subsequent thereto up to and
including each Closing Date hereinafter
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mentioned, the Registration Statement and the Prospectus, and any amendments or
supplements thereto, will contain all material statements and information
required to be included therein by the Act and the Rules and Regulations, and
will in all material respects conform to the requirements of the Act and the
Rules and Regulations, and neither the Registration Statement nor the
Prospectus, nor any amendment or supplement thereto, will include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, no representation or warranty contained in this subsection
2(b) shall be applicable to information contained in or omitted from any
Preliminary Prospectus, the Registration Statement, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any International
Manager, directly or through the Lead Managers, specifically for use in the
preparation thereof.
(c) The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21.1 to the Company's Annual Report on Form 10-K
for the Company's fiscal year ended March 31, 1996. The Company has been duly
incorporated and is validly existing as a public company under the laws of
Singapore. Each of the subsidiaries of the Company has been duly incorporated
and is validly existing in their respective jurisdictions of incorporation or
formation. The Company and each of its subsidiaries has full power and
authority (corporate and other) to own and lease their respective properties
and conduct their respective businesses; the Company owns all of the
outstanding capital stock or joint venture interests of its subsidiaries, free
and clear of all claims, liens, charges and encumbrances; the Company and each
of its subsidiaries are in possession of and operating in compliance with all
authorizations, licenses, permits, consents, certificates and orders material
to the conduct of their respective businesses, all of which are valid and in
full force and effect; the Company and each of its subsidiaries are duly
qualified to do business and in good standing as foreign corporations in each
jurisdiction in which the ownership or leasing of properties or the conduct of
their respective businesses requires such qualification, except for
jurisdictions in which the failure to so qualify would not have a material
adverse effect upon the Company or the subsidiary; and no proceedings has been
instituted in any such jurisdiction, revoking, limiting or curtailing, or
seeking to revoke, limit or curtail, such power and authority or qualification.
(d) The Company has an authorized and issued share
capital as set forth under the heading "Capitalization" in the Prospectus; the
issued and outstanding Ordinary Shares have been duly authorized and validly
issued, are fully paid, have been issued in compliance with all federal and
state securities laws, whether of Singapore, the United States or otherwise,
were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities, and conform to the description
thereof contained in the Prospectus. All issued and outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized and
validly issued and are fully paid and nonassessable. Except as disclosed in
the Prospectus and the financial statements of the Company, and the related
notes thereto, included in the Prospectus, neither the Company nor any
subsidiary has outstanding any options to purchase, or any preemptive rights or
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other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
obligations. The description of the Company's stock option, stock bonus and
other stock schemes, plans or arrangements, and the options or other rights
granted and exercised thereunder, set 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 International Common Shares to be purchased by
the International Managers 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 International 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
International Common Shares to be sold by the Company as contemplated herein
other than the Board of Directors' approval of the list of purchasers of the
International Common Shares, which will occur prior to the First Closing.
(f) The Company has full legal right, power and
authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company in accordance with its terms. The making and performance of this
Agreement by the Company and the consummation of the transactions herein
contemplated will not violate any provisions of the Memorandum and Articles of
Association, Certificate of Incorporation, or other organizational documents,
of the Company or any of its subsidiaries, and will not conflict with, result
in the breach or violation of, or constitute, either by itself or upon notice
or the passage of time or both, a default under any agreement, mortgage, deed
of trust, lease, franchise, license, indenture, permit or other instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of its respective properties may be bound or
affected (except as to conflicts, breaches, violations or defaults of any of
the foregoing that individually or in the aggregate would not be material to
the Company), any statute or any authorization, judgment, decree, order, rule
or regulation of any court or any regulatory body, administrative agency or
other governmental body applicable to the Company or any of its subsidiaries or
any of their respective properties. No consent, approval, authorization or
other order of any court, regulatory body, administrative agency or other
governmental body is required for the execution and delivery of this Agreement
or the consummation of the transactions contemplated by this Agreement, except
for compliance with the Act, the Blue Sky laws applicable to the public
offering of the International Common Shares by the several International
Managers and the
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clearance of such offering with the National Association of Securities Dealers,
Inc. (the "NASD").
(g) Ernst & Young LLP, who have expressed their opinion
with respect to the consolidated financial statements and schedules filed with
the Commission as a part of the Registration Statement and included in the
Prospectus and in the Registration Statement, are independent accountants as
required by the Act, the Rules and Regulations and the Exchange Act.
(h) The consolidated financial statements and schedules
of the Company and its subsidiaries, and the related notes thereto, included in
the Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of the respective
dates of such financial statements and schedules, and the results of operations
and changes in financial position of the Company and its subsidiaries for the
respective periods covered thereby. Such statements, schedules and related
notes have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis as certified by the independent
accountants named in subsection 2(g). No other financial statements or
schedules are required to be included in the Registration Statement. The
selected financial data set forth in the Prospectus under the captions
"Prospectus Summary--Summary Selected Financial Data," "Capitalization" and
"Selected Financial Data" fairly present the information set forth therein on
the basis stated in the Registration Statement.
(i) Except as disclosed in the Prospectus, and except as
to defaults which individually or in the aggregate would not be material to the
Company, neither the Company nor any of its subsidiaries is in violation or
default of any provision of its memorandum and Articles of Association,
Certificate of Incorporation, or other organizational documents, or is in
breach of or default with respect to any provision of any agreement, judgment,
decree, order, mortgage, deed of trust, lease, franchise, license, indenture,
permit or other instrument to which it is a party or by which it or any of its
properties are bound; and there does not exist any state of facts which
constitutes an event of default on the part of the Company or any such
subsidiary as defined in such documents or which, with notice or lapse of time
or both, would constitute such an event of default.
(j) There are no contracts or other documents required
to be described in the Registration Statement or to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which have
not been described or filed as required. The descriptions of the contracts so
described in the Prospectus are accurate; all such contracts are in full force
and effect on the date hereof; and neither the Company nor any of its
subsidiaries, nor to the best of the Company's knowledge, any other party is in
breach of or default under any of such contracts.
(k) There are no legal or governmental actions, suits or
proceedings pending or, to the best of the Company's knowledge, threatened to
which the Company or any of its subsidiaries is or may be a party or of which
property owned or leased by the Company or any of its subsidiaries is or may be
the
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subject, or related to environmental or discrimination matters, which actions,
suits or proceedings might, individually or in the aggregate, prevent or
adversely affect the transactions contemplated by this Agreement or result in a
material adverse change in the condition (financial or otherwise), properties,
business, results of operations or, to the best of the Company's knowledge,
prospects of the Company and its subsidiaries; and no labor disturbance by the
employees of the Company or any of its subsidiaries exists or is imminent which
might be expected to affect adversely such condition, properties, business,
results of operations or, to the best of Company's knowledge, prospects.
Neither the Company nor any of its subsidiaries is a party or subject to the
provisions of any material injunction, judgment, decree or order of any court,
regulatory body, administrative agency or other governmental body.
(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 International Common Shares hereunder and the
exercise of options disclosed in the Prospectus) or indebtedness material to
the Company and its subsidiaries (other than in the ordinary course of
business); and (v) there has not been any material adverse change in the
condition (financial or otherwise), business, properties, results of operations
or, to the best of the Company's knowledge, prospects of the Company and its
subsidiaries.
(n) Except as disclosed in or specifically contemplated
by the Prospectus, the Company and its subsidiaries have sufficient trademarks,
trade names, patent rights, mask works, copyrights, licenses, approvals and
governmental authorizations to conduct their businesses as now conducted; the
expiration of any
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trademarks, trade names, patent rights, mask works, copyrights, licenses,
approvals or governmental authorizations would not have a material adverse
effect on the condition (financial or otherwise), business, results of
operations or, to the best of the Company's knowledge, prospects of the Company
or its subsidiaries; and the Company has no knowledge of any material
infringement by it or its subsidiaries of trademark, trade name rights, patent
rights, mask works, copyrights, licenses, trade secret or other similar rights
of others, and there is no claim being made against the Company or its
subsidiaries regarding trademark, trade name, patent, mask work, copyright,
license, trade secret or other infringement which could have a material adverse
effect on the condition (financial or otherwise), business, results of
operations or, to the best of the Company's knowledge, prospects of the Company
and its subsidiaries.
(o) The Company has not been advised, and has no reason
to believe, that either it or any of its subsidiaries is not conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, including, without
limitation, all applicable local, state and federal environmental laws and
regulations; except where failure to be so in compliance would not materially
adversely affect the condition (financial or otherwise), business, results of
operations or, to the best of the Company's knowledge, prospects of the Company
and its subsidiaries.
(p) The Company and its subsidiaries have filed all
necessary federal, national, state, provincial, foreign and other income and
franchise tax returns and have paid all taxes shown as due thereon; and the
Company has no knowledge of any tax deficiency which has been or might be
asserted or threatened against the Company or its subsidiaries which could
materially and adversely affect the business, operations or properties of the
Company and its subsidiaries.
(q) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(r) The Company has not distributed and will not
distribute prior to the First Closing Date any offering material in connection
with the offering and sale of the International 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
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with similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof.
(u) The Company has not taken and will not take,
directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of
the Ordinary Shares to facilitate the sale or resale of the International
Common Shares.
(v) Subject to the approval of the list of purchasers by
the Board of Directors of the Company as referred to in (e) above, no transfer
taxes are required to be paid in connection with the sale and delivery of the
International Common Shares to the International Managers hereunder.
(w) The Ordinary Shares (including the International
Common Shares) are registered pursuant to Section 12(g) of the Exchange Act and
are listed on the Nasdaq National Market, and the Company has taken no action
designed to, or likely to have the effect of, terminating the registration of
the Ordinary Shares under the Exchange Act or delisting the Ordinary Shares
from the Nasdaq National Market, nor has the Company received any notification
that the Commission or the NASD is contemplating terminating such registration
or listing.
(x) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read together
with the other information in the Prospectus, at the time the Registration
Statement and any amendments thereto become effective and at the First Closing
Date and the Second Closing Date, as the case may be, will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Any certificate signed by an officer of the Company and delivered
to the Lead Managers or to counsel for the International Managers shall be
deemed to be a representation and warranty by the Company to each International
Manager as to the matters covered thereby.
3. Representations and Warranties of the International
Managers. The Lead Managers, on behalf of the several International Managers,
represent and warrant to the Company that the information set forth (i) on the
cover page of the Prospectus with respect to price, underwriting discounts and
commissions and terms of offering and (ii) under "Underwriting" in the
Prospectus was furnished to the Company by and on behalf of the International
Managers for use in connection with the preparation of the Registration
Statement and the Prospectus and is correct in all material respects. The Lead
Managers represent and warrant that they have been authorized by each of the
other International Managers as the Lead Managers to enter into this Agreement
on its behalf and to act for it in the manner herein provided.
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4. Purchase, Sale and Delivery of International Common Shares.
Upon the terms herein set forth, the Company agrees to issue and sell to the
several International Managers an aggregate of 437,500 Firm International
Common Shares. On the basis of the representations, warranties and agreements
herein contained, and upon the terms but subject to the conditions herein set
forth, the International Managers agree, severally and not jointly, to purchase
from the Company the respective number of Firm International Common Shares set
forth opposite their names on Schedule A. The purchase price per Firm Common
Share to be paid by the several International Managers to the Company shall be
$[_____] per share.
Delivery of certificates for the Firm International Common Shares
to be purchased by the International Managers and payment therefor shall be
made at the offices of Xxxxxxxxxx Securities, 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx (or such other place as may be agreed to by the Company
and the Lead Managers) at 6:00 a.m., on [_____], or such other time and date
not later than 10:30 a.m., on the later of the fifth full business day
following the first date that any of the International Common Shares are
released by you for sale to the public or the date that is 48 hours after the
date that the Prospectus has been recirculated, if applicable (the time and
date of such closing are called the "First Closing Date"). The Company hereby
acknowledges that circumstances under which the Lead Managers may provide
notice to postpone the First Closing Date as originally scheduled include, but
are in no way limited to, any determination by the Company or the Lead Managers
to recirculate to the public copies of an amended or supplemented Prospectus or
a delay due to the issuance of a stop order as contemplated by the provisions
of Section 9.
In addition, on the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the conditions
herein set forth, the Company hereby grants an option to the several
International Managers to purchase, severally and not jointly, up to an
aggregate of 65,625 Optional International Common Shares from the Company at
the purchase price per share to be paid by the International Managers for the
Firm International Common Shares. The option granted hereunder is for use by
the International Managers solely in covering any over-allotments in connection
with the sale and distribution of the Firm International Common Shares. The
option granted hereunder may be exercised at any time (but not more than once)
upon notice by the Lead Managers to the Company, which notice may be given at
any time within 30 days from the date of this Agreement. Such notice shall set
forth (i) the aggregate number of Optional International Common Shares as to
which the International Managers are exercising the option, (ii) the names and
denominations in which the certificates for the Optional International Common
Shares are to be registered and (iii) the time, date and place at which such
certificates will be delivered (which time and date may be simultaneous with,
but not earlier than, the First Closing Date; and in such case the term "First
Closing Date" shall refer to the time and date of delivery of certificates for
the Firm International Common Shares and the Optional International Common
Shares). Such time and date of delivery, if subsequent to the First Closing
Date, is called the "Second Closing Date" and shall be determined by the Lead
Managers and shall not be earlier than three nor later than five full business
days after delivery of such notice of exercise. If any Optional International
Common Shares are to be purchased, each
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International Manager agrees, severally and not jointly, to purchase the number
of Optional International Common Shares (subject to such adjustments to
eliminate fractional shares as the Lead Managers may determine) that bears the
same proportion to the total number of Optional International Common Shares to
be purchased as the number of Firm International Common Shares set forth on
Schedule A opposite the name of such International Manager bears to the total
number of Firm International Common Shares. The Lead Managers may cancel the
option at any time prior to its expiration by giving written notice of such
cancellation to the Company.
The Lead Managers hereby advise the Company that the
International Managers intend to offer for sale to the public, as described in
the Prospectus, the International Common Shares as soon after this Agreement
has been executed and the Registration Statement has been declared effective as
the Lead Managers, in their sole judgment, have determined is advisable and
practicable. The Lead Managers hereby further advise the Company that (i) the
International Managers will offer the International Common Shares for sale to
the public initially at a price of $[_____] per share and to certain dealers
selected by the Lead Managers at a price that represents a concession of not
more than $[_____] per share from such initial public offering price and (ii)
any International Manager may allow, and such dealers may reallow, a concession
of not more than $[_____] per share to any other International Manager or to
certain other dealers.
Payment for the International Common Shares to be sold by the
Company shall be made at the First Closing Date (and, if applicable, at the
Second Closing Date) by wire transfer of immediately available funds to the
order of the Company.
It is understood that the Lead Managers have been authorized, for
their own accounts and the accounts of the several International Managers, to
accept delivery of and receipt for, and make payment of the purchase price for,
the Firm International Common Shares and any Optional International Common
Shares the International Managers have agreed to purchase. Xxxxxxxxxx
Securities, individually and not as a representative of the International
Managers, may (but shall not be obligated to) make payment for any
International Common Shares to be purchased by any International Manager whose
funds shall not have been received by the Lead Managers by the First Closing
Date or the Second Closing Date, as the case may be, for the account of such
International Manager, but any such payment shall not relieve such
International Manager from any of its obligations under this Agreement.
The Company shall deliver, or cause to be delivered, to the Lead
Managers for the accounts of the several International Managers certificates
for the Firm International Common Shares to be sold by it at the First Closing
Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The Company
shall also deliver, or cause to be delivered, to the Lead Managers for the
accounts of the several International Managers, certificates for the Optional
International Common Shares the International Managers have agreed to purchase
at the First Closing Date or the Second Closing Date, as the case may be,
against the irrevocable release of a wire transfer of immediately available
funds for the amount of the purchase price therefor. The certificates for the
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International Common Shares shall be in definitive form and registered in such
names and denominations as the Lead Managers shall have requested at least two
full business days prior to the First Closing Date (or the Second Closing Date,
as the case may be) and shall be made available for inspection on the business
day preceding the First Closing Date (or the Second Closing Date, as the case
may be) at a location in New York City as the Lead Managers may designate.
Time shall be of the essence, and delivery at the time and place specified in
this Agreement is a further condition of the obligations of the International
Managers.
Not later than 12:00 Noon San Francisco time on the second
business day following the later of the date of this Agreement or the date the
International Common Shares are released by the International Managers 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 Lead Managers shall
request.
5. Covenants of the Company. The Company covenants and agrees
that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not effective at the time
and date that this Agreement is executed and delivered by the parties hereto,
to become effective. If the Registration Statement has become or becomes
effective pursuant to Rule 430A of the Rules and Regulations, or the filing of
the Prospectus is otherwise required under Rule 424(b) of the Rules and
Regulations, the Company will file the Prospectus, properly completed, pursuant
to the applicable paragraph of Rule 424(b) of the Rules and Regulations within
the time period prescribed and will provide evidence satisfactory to you of
such timely filing. The Company will promptly advise you in writing (i) of the
receipt of any comments of the Commission, (ii) of any request of the
Commission for amendment of or supplement to the Registration Statement (either
before or after it becomes effective), any Preliminary Prospectus or the
Prospectus or for additional information, (iii) when the Registration Statement
shall have become effective, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose. If the Commission shall enter
any such stop order at any time, the Company will use its best efforts to
obtain the lifting of such order at the earliest possible moment. The Company
will not file any amendment or supplement to the Registration Statement (either
before or after it becomes effective), any Preliminary Prospectus or the
Prospectus (including any amendment or supplement through incorporation by
reference of any report filed under the Exchange Act) of which you have not
been furnished with a copy a reasonable time prior to such filing or to which
you reasonably object or which is not in compliance with the Act and the Rules
and Regulations.
(b) The Company will prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or the Prospectus which in your judgment may be
necessary or advisable to enable the several International Managers to continue
the distribution of the International Common Shares and will use its best
efforts to cause the same to
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become effective as promptly as possible. The Company will fully and
completely comply with the provisions of Rules 424(b), 430A and 434, as
applicable, of the Rules and Regulations with respect to information omitted
from the Registration Statement in reliance upon such Rule.
(c) If at any time within the nine-month period referred
to in Section 10(a)(3) of the Act during which a prospectus relating to the
International 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
any International Manager is required to deliver a prospectus after such
nine-month period, the Company upon request, but at the expense of such
International Manager, will promptly prepare such amendment or amendments to
the Registration Statement and such Prospectus or Prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a)(3) of the
Act.
(d) As soon as practicable, but not later than 45 days
after the end of the first quarter ending after one year following the
"effective date of the Registration Statement" (as defined in Rule 158(c) of
the Rules and Regulations), the Company will make generally available to its
security holders an earning statement (which need not be audited) covering a
period of 12 consecutive months beginning after the effective date of the
Registration Statement which will satisfy the provisions of the last paragraph
of Section 11(a) of the Act.
(e) During such period as a prospectus is required by
law to be delivered in connection with sales by an International Manager or
dealer, the Company, at its expense, but only for the nine-month period
referred to in Section 10(a)(3) of the Act, will furnish to you or mail to your
order copies of the Registration Statement, the Prospectus, the Preliminary
Prospectus and all amendments and supplements to any such documents (including
any documents incorporated or deemed incorporated by reference therein) in each
case as soon as available and in such quantities as you may request, for the
purposes contemplated by the Act.
(f) The Company shall cooperate with you and your
counsel in order to qualify or register the International 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
International Common Shares. The Company shall
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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
International 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 Lead Managers and, upon request of the Lead
Managers, to each of the other International Managers: (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 International Common Shares are released by you for sale to the
public, without the prior written consent of either Xxxxxxxxxx Securities or
each of the Lead Managers (which consent may be withheld at the sole discretion
of Xxxxxxxxxx Securities or the Lead Managers, as the case may be), the Company
will not issue, offer, sell, grant options to purchase or otherwise dispose of
any of the Company's equity securities or any other securities convertible into
or exchangeable with its Ordinary Shares or other equity security, other than
pursuant to outstanding stock options and warrants disclosed in the Prospectus
and other than the grant of options or the issuance of the Company's equity
securities pursuant to the Company's employee share option plans described in
the Prospectus or the issuance of Ordinary Shares in connection with
acquisitions.
(i) The Company will apply the net proceeds of the sale
of the International Common Shares sold by it substantially in accordance with
its statements under the caption "Use of Proceeds" in the Prospectus.
(j) During such period as a prospectus is required by
law to be delivered in connection with sales by an International Manager or
dealer, the Company will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the manner
and within the time periods required by the Exchange Act.
The Lead Managers, on behalf of the International Managers, may,
in their sole discretion, waive in writing the performance by the Company of
any one or more
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of the foregoing covenants set forth in Section 5 herein or extend the time for
their performance.
6. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective or
is terminated, the Company agrees to pay all costs, fees and expenses incurred
in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including without
limiting the generality of the foregoing (i) all expenses incident to the
issuance and delivery of the International 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 International
Common Shares to the International Managers, (iv) all fees and expenses of the
Company's counsel and the Company's independent accountants, including fees of
counsel or independent accountants with respect to any subsidiary of the
Company, (v) all costs and expenses incurred in connection with the printing,
filing, shipping and distribution of the Registration Statement, each
Preliminary Prospectus and the Prospectus (including all exhibits and financial
statements) and all amendments and supplements provided for herein, this
Agreement, the Agreement Among Underwriters, the Selected Dealers Agreement,
the Underwriters' Questionnaire, the Underwriters' Power of Attorney and the
Blue Sky memorandum, (vi) all filing fees, attorneys' fees and expenses
incurred by the Company or the International Managers in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the International Common Shares for offer
and sale under the Blue Sky laws (including those of Canada) and under the
applicable securities laws of such other nations as you may designate, (vii)
the filing fee incident to the review and approval of the International
Managers' participation in the offering and distribution of the International
Common Shares by the NASD, and (viii) all other fees, costs and expenses
referred to in Item 13 of the Registration Statement. Except as provided in
this Section 6, Section 8 and Section 10 hereof, the International Managers
shall pay all of their own expenses, including the fees and disbursements of
their counsel (excluding those relating to qualification, registration or
exemption under the Blue Sky laws (including those of Canada) and under the
applicable securities laws of such other nations as you may designate, and the
Blue Sky memorandum referred to above).
7. Conditions of the Obligations of the International
Managers. The obligations of the several International Managers to purchase
and pay for the Firm Ordinary Shares on the First Closing Date and the Optional
Ordinary Shares on the Second Closing Date shall be subject to the accuracy of
the representations and warranties on the part of the Company herein set forth
as of the date hereof and as of the First Closing Date or the Second Closing
Date, as the case may be, to the accuracy of the statements of Company officers
made pursuant to the provisions hereof, to the performance by the Company of
its obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 5:00 p.m., Washington, D.C. time, on the date of this
Agreement, or at such
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later time as shall have been consented to by you; if the filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of
the Rules and Regulations, the Prospectus shall have been filed in the manner
and within the time period required by Rule 424(b) of the Rules and
Regulations; and prior to such Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be pending or,
to the knowledge of the Company or you, shall be contemplated by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement, or otherwise, shall have been
complied with to your satisfaction.
(b) You shall be satisfied that since the respective
dates as of which information is given in the Registration Statement and
Prospectus, (i) there shall not have been any change in the authorized or
issued share capital of the Company or any of its subsidiaries other than
pursuant to the exercise of outstanding options disclosed in the Prospectus or
any material change in the indebtedness (other than in the ordinary course of
business) of the Company or any of its subsidiaries, (ii) except as set forth
or contemplated by the Registration Statement or the Prospectus, no material
verbal or written agreement or other transaction shall have been entered into
by the Company or any of its subsidiaries, which is not in the ordinary course
of business or which could result in a material reduction in the future
earnings of the Company and its subsidiaries, (iii) no loss or damage (whether
or not insured) to the property of the Company or any of its subsidiaries shall
have been sustained which materially and adversely affects the condition
(financial or otherwise), business, results of operations or prospects of the
Company and its subsidiaries, (iv) no legal or 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 Lead Managers to proceed with the public
offering or purchase the International Common Shares as contemplated hereby.
(c) There shall have been furnished to you, as Lead
Managers of the International Managers, on each Closing Date, in form and
substance satisfactory to you, except as otherwise expressly provided below:
(i) (A) An opinion of Xxxxx & Xxxxxxxx,
counsel for the Company, addressed to the International Managers and dated the
First Closing Date, or the Second Closing Date, as the case may be, to the
effect that:
(1) Each of the Company and its
Singapore subsidiary has been duly incorporated and is validly existing as a
corporation (public corporation in the case of the Company) under the laws of
its jurisdiction of incorporation, and has full corporate power and authority
to own its properties and conduct its business as described in the Registration
Statement;
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(2) As of the respective Closing
Date, the authorized issued and outstanding capital stock of the Company is as
set forth under the caption "Capitalization" in the Prospectus as the same
refers to "Actual" authorized, issued and outstanding shares; all necessary and
proper corporate proceedings have been taken in order to authorize validly such
authorized Ordinary Shares; all outstanding Ordinary Shares have been duly and
validly issued, are fully paid and nonassessable, and were not issued in
violation of or subject to any preemptive rights or other rights to subscribe
for or purchase any securities contained in the Memorandum and Articles of
Association of the Company or Singapore law or any material agreement to which
the Company or any subsidiary is a party; the outstanding Ordinary Shares were
issued in compliance with all laws of Singapore, that impose any restrictions
or requirements on, or otherwise regulate, the sale of securities; and the
Ordinary Shares conform to the description thereof contained in the Prospectus;
(3) All of the issued and
outstanding shares of the Company's Singapore subsidiary have been duly and
validly authorized and issued and are fully paid; to such counsel's knowledge
all shares of the Company's subsidiaries are owned beneficially by the Company
free and clear of all liens, encumbrances, equities, claims, security
interests, voting trusts or other defects of title whatsoever, except as
described in the Registration Statement;
(4) The certificates evidencing the
International Common Shares to be delivered by the Company hereunder are in due
and proper form under Singapore law, and when the Company's seal thereon has
been affixed in accordance with the Company's Articles of Association, and
delivered to you or upon your order against payment of the agreed consideration
therefor in accordance with the provisions of this Agreement, the Ordinary
Shares represented thereby will be duly authorized and validly issued and fully
paid, will not have been issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities and will conform
in all respects to the description thereof contained in the Prospectus;
(5) Except as disclosed in or
specifically contemplated by the Prospectus, to such counsel's knowledge, there
are no outstanding options, warrants or other rights calling for the issuance
of, and no commitments, plans or arrangements to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable for
capital stock of the Company;
(6) To the best of such counsel's
knowledge, there are no legal or governmental actions, suits or proceedings
pending against the Company which are required to be described in the
Prospectus which are not described as required;
(7) The Company has full right,
power and authority under Singapore law to enter into this Agreement and to
sell and deliver the Ordinary Shares to be sold by it to the several
International Managers; this
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Agreement has been duly and validly authorized by all necessary corporate
action by the Company, has been duly and validly executed and delivered by and
on behalf of the Company, and is a valid and binding agreement of the Company
in accordance with its terms, except as enforceability may be limited by
general equitable principles, bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and except as to
those provisions relating to indemnity or contribution for liabilities arising
under the Act as to which no opinion need be expressed; and no approval,
authorization, order, consent, registration, filing, qualification, license or
permit of or with any court, regulatory, administrative or other governmental
body in Singapore is required for the execution and delivery of this Agreement
by the Company or the consummation of the transactions contemplated by this
Agreement;
(8) The execution and performance of
this Agreement and the consummation of the transactions herein contemplated
will not violate any of the provisions of the Memorandum and Articles of
Association of the Company or its Singapore subsidiary or, so far as is known
to such counsel, violate any decree, statute or rule of Singapore or any
material agreement to which the Company or its Singapore subsidiary is a party;
(9) To such counsel's knowledge,
neither the Company nor its Singapore subsidiary is in violation of its
Memorandum and Articles of Association, or other organizational documents, or
in breach of or default with respect to any provision of any agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument known to such counsel to which the Company or any such subsidiary is
a party or by which it or any of its properties may be bound or affected,
except where such default would not materially adversely affect the Company and
its subsidiaries; and, to such counsel's knowledge, the Company and its
Singapore subsidiary are in compliance with all decrees, statutes or
governmental rule of Singapore, to which they are subject, except where
noncompliance would not materially adversely affect the Company and its
subsidiaries;
(10) The statements made in the
Prospectus under "Enforcement of Civil Liabilities," "Description of Capital
Shares" and "Taxation," to the extent they constitute summaries of the laws of
Singapore are accurate, complete and fair summaries;
(11) The choice of California law as
the law governing this Agreement is valid and binding under the laws of
Singapore, except to the extent that any term of this Agreement or provision of
California law applicable to this Agreement is incompatible with the public
policy of Singapore; the consent to jurisdiction as provided in Section 19 of
this Agreement is valid and binding upon the Company under the laws of
Singapore.
(12) No stamp or other issuance or
transaction taxes or duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the International Managers to the
government of Singapore or any subdivision or taxing authority thereof or
therein in connection with (a) the sale and
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delivery by the Company of the International Common Shares to or for the
accounts of the International Managers and (b) the sale and delivery of the
International Common Shares inside or outside of Singapore by the International
Managers to the purchasers thereof (excluding any Singapore income tax on the
income of any International Manager whose net income is subject to tax by the
government of Singapore).
In rendering such opinion, such counsel may state that with
respect to all matters of the laws of the United States, they are relying on
the opinion of Fenwick & West LLP, provided that such counsel states they
believe that both you and they are justified in relying on such opinion.
(B) An opinion of Fenwick & West LLP,
special counsel to the Company, addressed to the International Managers and
dated the First Closing Date or the Second Closing Date, as the case may be, to
the effect that:
(1) Flextronics International (USA),
Inc. (the "U.S. Sub") has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the jurisdiction of its
incorporation; the Company and each of its subsidiaries is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction, if
any, in the United States in which the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries; and the U.S. Sub
has full corporate power and authority to own its properties and conduct its
business as currently conducted;
(2) To such counsel's knowledge, the
issued and outstanding Ordinary Shares issued after August 2, 1995 were issued
in compliance with United States federal and California securities laws;
(3) All of the issued and
outstanding shares of the U.S. Sub have been duly and validly authorized and
issued and are fully paid and nonassessable and to such counsel's knowledge are
owned beneficially by the Company free and clear of all liens, encumbrances,
equities, claims, security interests, voting trusts or other defects of title
whatsoever;
(4) Except as disclosed in or
specifically contemplated by the Prospectus, to such counsel's knowledge, there
are no outstanding options, warrants or other rights calling for the issuance
of, and no commitments, plans or arrangements to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable for
capital stock of the Company;
(5) a. The Registration Statement
has become effective under the Act, and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or preventing
the use of the Prospectus has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated by the Commission; any
required filing of the Prospectus
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and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations
has been made in the manner and within the time period required by such Rule
424(b);
b. The Registration Statement, the
Prospectus (including any document incorporated by reference therein) and each
amendment or supplement thereto (except for the financial statements and
schedules included therein as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the Act,
the Rules and Regulations and the Exchange Act;
c. To such counsel's knowledge,
there are no franchises, leases, contracts, agreements or documents of a
character required to be disclosed in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement which are not
disclosed or filed or incorporated by reference, as required;
d. To such counsel's knowledge,
there are no legal or governmental actions, suits or proceedings pending or
threatened against the Company which are required to be described in the
Prospectus which are not described as required;
(6) The Company has full right,
power and authority to enter into this Agreement and to sell and deliver the
Ordinary Shares to be sold by it to the several International Managers; 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 International Common Shares by the International Managers
and the clearance of such offering with the NASD;
(7) The execution and performance of
this Agreement and the consummation of the transactions herein contemplated
will not conflict with, result in the breach of, or constitute, either by
itself or upon notice or the passage of time or both, a default under, any
agreement, mortgage, deed of trust, lease, franchise, license, indenture,
permit or other instrument listed on an appendix to such opinion, and
reasonably acceptable to counsel to the International Managers, 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
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which is material to the Company and its subsidiaries, or violate any of the
provisions of the Memorandum and Articles of Association, or other
organizational documents, of the Company or the U.S. Sub or, so far as is known
to such counsel, violate any statute, judgment, decree, order, rule or
regulation of any court or governmental body having jurisdiction over the
Company or the U.S. Sub or any of their respective property;
(8) No U.S. Sub is in violation of
its Articles or Certificate of Incorporation, as the case may be;
(9) Each document filed pursuant to
the Exchange Act (other than the financial statements and supporting schedules
included therein, as to which no opinion need be rendered) and incorporated or
deemed to be incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the Exchange Act.
In rendering such opinion, such counsel may state that with
respect to all matters of the laws of Singapore or pertaining to the Memorandum
or Articles of Association of the Company, they are relying solely on the
opinion of Xxxxx & Xxxxxxxx.
Fenwick & West LLP shall also include a statement to the effect
that nothing has come to such counsel's attention that would lead such counsel
to believe that, either at the effective date of the Registration Statement or
at the applicable Closing Date, the Registration Statement or the Prospectus,
or any amendment or supplement thereto, contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
Fenwick & West LLP shall also provide a separate opinion, dated
the First Closing Date or the Second Closing Date, as the case may be, to the
effect that the statements in the Prospectus under "Taxable," to the extent
they constitute summaries of the laws of the United States, are accurate,
complete and fair summaries as of the applicable Closing Date.
(C) Opinions of counsel in Hong Kong,
Malaysia and the People's Republic of China regarding certain matters relating
to the subsidiaries incorporated in, or the laws of, such countries that would
constitute significant subsidiaries as referred to in Regulation S-X of the
Rules and Regulations, in form reasonably acceptable to counsel to the
International Managers.
(D) In rendering the foregoing opinions,
such counsel may rely as to matters of fact on certificates of officers of the
Company and of governmental officials.
(ii) Such opinion or opinions of Howard, Rice,
Nemerovski, Canady, Xxxx & Xxxxxx, a Professional Corporation, and Xxxxx Xxxxxx
& Xxxxxxxxxxx, counsel for the International Managers, dated the First Closing
Date or
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the Second Closing Date, as the case may be, with respect to the incorporation
of the Company, the sufficiency of all corporate proceedings and other legal
matters relating to this Agreement, the validity of the International Common
Shares, the Registration Statement and the Prospectus and other related matters
as you may reasonably require, and the Company shall have furnished to such
counsel such documents and shall have exhibited to them such papers and records
as they may reasonably request for the purpose of enabling them to pass upon
such matters. In connection with such opinions, such counsel may rely on
representations or certificates of officers of the Company and governmental
officials.
(iii) A certificate of the Company executed by the
Chairman of the Board, the President and the Chief Financial Officer of the
Company, dated the First Closing Date or the Second Closing Date, as the case
may be, to the effect that:
(1) The representations and warranties of
the Company set forth in Section 2 of this Agreement are true and correct as of
the date of this Agreement and as of the First Closing Date or the Second
Closing Date, as the case may be, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied on or prior to such Closing Date;
(2) The Commission has not issued any
order preventing or suspending the use of the Prospectus or any Preliminary
Prospectus filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the Registration
Statement has been issued; and to the best of the knowledge of the respective
signers, no proceedings for that purpose have been instituted or are pending
under the Act;
(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
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subsidiaries, whether or not arising from transactions in the ordinary course
of business, or which may adversely affect the transactions contemplated by
this Agreement; since such dates and except as so disclosed, neither the
Company nor any of its subsidiaries has entered into any verbal or written
agreement or other transaction not in the ordinary course of business or which
could result in a material reduction in the future earnings of the Company or
incurred any material liability or obligation, direct, contingent or indirect,
made any change in its capital stock, made any material change in its
short-term debt or funded debt or repurchased or otherwise acquired any of the
Company's capital stock; and the Company has not declared or paid any dividend,
or made any other distribution, upon its outstanding capital stock payable to
shareholders of record on a date prior to the First Closing Date or Second
Closing Date; and
(6) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus and
except as disclosed in or contemplated by the Prospectus, the Company and its
subsidiaries have not sustained a material loss or damage by strike, fire,
flood, windstorm, accident or other calamity (whether or not insured).
(iv) On the date before this Agreement is executed
and also on the First Closing Date and the Second Closing Date a letter
addressed to you, as Lead Managers of the International Managers, from Ernst &
Young LLP, independent accountants, the first one to be dated the day before
the date of this Agreement, the second one to be dated the First Closing Date
and the third one (in the event of a Second Closing) to be dated the Second
Closing Date, in form and substance satisfactory to the Lead Managers.
(v) Contemporaneously with the purchase by the
International Managers of the International Firm Common Shares under this
Agreement, the U.S. Underwriters shall have purchased the Firm U.S. Common
Shares under the U.S. Underwriting Agreement.
(vi) On or before the First Closing Date, letters
from each director and officer and certain other employees of the Company, in
form and substance satisfactory to you, confirming that for a period of 90 days
after the first date that any of the International Common Shares are released
by you for sale to the public, such person will not directly or indirectly sell
or offer to sell or otherwise dispose of any Ordinary Shares or any right to
acquire such shares without the prior written consent of either Xxxxxxxxxx
Securities or each of the Lead Managers, which consent may be withheld at the
sole discretion of Xxxxxxxxxx Securities or each of the Lead Managers, as the
case may be, subject to exceptions allowing the immediate sale of an aggregate
of approximately 100,000 Ordinary Shares by certain of said individuals.
All such opinions, certificates, letters and documents shall be
in compliance with the provisions hereof only if they are satisfactory to you
and to
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Howard, Rice, Nemerovski, Canady, Xxxx & Xxxxxx, a Professional Corporation,
counsel for the International Managers. 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 International Managers' obligations
hereunder to be satisfied prior to or at the First Closing Date is not so
satisfied, this Agreement at your election will terminate upon notification by
you as Lead Managers to the Company without liability on the part of any
International Manager 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 International Managers' 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
International Managers of the Common Shares at the First Closing is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse you and the other International Managers 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
International 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 cause the Registration Statement to become effective,
to prevent the issuance of any stop order suspending the effectiveness of the
Registration Statement and, if such stop order be issued, to obtain as soon as
possible the lifting thereof.
10. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each International Manager and each person, if any, who controls any
International Manager within the meaning of the Act against any losses, claims,
damages, liabilities or expenses, joint or several, to which such International
Manager or such controlling person may become subject, under the Act, the
Exchange Act, or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state in any of them a material fact required to be
stated therein or necessary to make the statements in any of them not
misleading, or arise out of or are
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based in whole or in part on any inaccuracy in the representations and
warranties of the Company contained herein or any failure of the Company to
perform its obligations hereunder or under law; and will reimburse each
International Manager and each such controlling person for any legal and other
expenses as such expenses are reasonably incurred by such International Manager
or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with the information furnished to
the Company pursuant to Section 3 hereof; and provided further, that the
indemnity provided in this Section 10(a) with respect to any Preliminary
Prospectus shall not inure to the benefit of any International Manager from
whom the person asserting any loss, claim, charge, liability or litigation
based upon any untrue statement or alleged untrue statement of a material fact
or omission or alleged omission to state therein a material fact purchased
Ordinary Shares, if a copy of the Prospectus in which such untrue statement or
alleged untrue statement or omission or alleged omission was corrected was not
sent or given to such person within the time required by the Act and the Rules
and Regulations thereunder. In addition to its other obligations under this
Section 10(a), the Company agrees that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged
statement or omission, or any inaccuracy in the representations and warranties
of the Company herein or failure to perform its obligations hereunder, all as
described in this Section 10(a), it will reimburse each International Manager
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 each International Manager for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, each International Manager shall
promptly return it together with interest, compounded daily, determined on the
basis of the prime rate (or other commercial lending rate for borrowers of the
highest credit standing) announced from time to time by Bank of America NT&SA,
San Francisco, California (the "Prime Rate"). Any such interim reimbursement
payments which are not made to an International Manager within 30 days of a
request for reimbursement, shall bear interest at the Prime Rate from the date
of such request. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each International Manager will severally indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims, damages,
liabilities or expenses to which the Company, or any such director, officer or
controlling person may become
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subject, under the Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent of such
International Manager), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of or
are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with the information furnished to the Company pursuant to Section 3
hereof; and will reimburse the Company, or any such director, officer or
controlling person for any legal and other expense reasonably incurred by the
Company, or any such director, officer or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. In addition to its other
obligations under this Section 10(b), each International Manager severally
agrees that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in this
Section 10(b) which relates to information furnished to the Company pursuant to
Section 3 hereof, it will reimburse the Company (and, to the extent applicable,
each officer, director or controlling person) on a quarterly basis for all
reasonable legal or other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the International Managers' 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 International Managers
together with interest, compounded daily, determined on the basis of the Prime
Rate. Any such interim reimbursement payments which are not made to the
Company within 30 days of a request for reimbursement, shall hear interest at
the Prime Rate from the date of such request. This indemnity agreement will be
in addition to any liability which such International Manager 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
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indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with all other
indemnifying parties similarly notified, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be a conflict between the positions of the indemnifying party
and the indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Lead Managers in the case of paragraph (a),
representing the indemnified parties who are parties to such action) or (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, in each of which cases the
fees and expenses of counsel shall be at the expense of the indemnifying party.
(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 International Managers, on the other
hand, from the offering of the International 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 International Managers, 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
International Managers, 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 International Common Shares sold by it to the International Managers
(net of underwriting commissions but before deducting expenses) bears to
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the total price to the public set forth on the cover of the Prospectus, and in
the case of the International Managers as the underwriting commissions received
by them bears to the total of such amounts paid to the Company and received by
the International Managers as underwriting commissions. The relative fault of
the Company, on the one hand, and the International Managers, 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 International Managers, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in subparagraph (c) of this Section 10, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
subparagraph (c) of this Section 10 with respect to notice of commencement of
any action shall apply if a claim for contribution is to be made under this
subparagraph (d); provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
subparagraph (c) for purposes of indemnification. The Company and the
International Managers agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined solely by pro rata
allocation (even if the International Managers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 10, no International
Manager shall be required to contribute any amount in excess of the amount of
the total underwriting commissions received by such International Manager in
connection with the International 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. The International Managers' obligations to contribute
pursuant to this Section 10 are several in proportion to their respective
underwriting commitments and not joint.
(e) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in Sections 10(a)
and 10(b) hereof, including the amounts of any requested reimbursement payments
and the method of determining such amounts, shall be settled by arbitration
conducted under the provisions of the Constitution and Rules of the Board of
Governors of the New York Stock Exchange, Inc. or pursuant to the Code of
Arbitration Procedure of the NASD. Any such arbitration must be commenced by
service of a written demand for arbitration or written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in Sections 10(a) and 10(b)
hereof and would not resolve the ultimate propriety or
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enforceability of the obligation to reimburse expenses which is created by the
provisions of such Sections 10(a) and 10(b) hereof.
11. Default of International Managers. It shall be a condition
to this Agreement and the obligation of the Company to sell and deliver the
International Common Shares hereunder, and of each International Manager to
purchase the International Common Shares in the manner as described herein,
that, except as hereinafter in this paragraph provided, each of the
International Managers shall purchase and pay for all the International Common
Shares agreed to be purchased by such International Manager hereunder upon
tender to the Lead Managers of all such shares in accordance with the terms
hereof. If any International Manager or International Managers default in
their obligations to purchase International Common Shares hereunder on either
the First or Second Closing Date and the aggregate number of International
Common Shares which such defaulting International Manager or International
Managers agreed but failed to purchase on such Closing Date does not exceed 10%
of the total number of International Common Shares which the International
Managers are obligated to purchase on such Closing Date, the non-defaulting
International Managers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the International Common Shares
which such defaulting International Managers agreed but failed to purchase on
such Closing Date. If any International Manager or International Managers so
default and the aggregate number of International Common Shares with respect to
which such default occurs is more than the above percentage and arrangements
satisfactory to the Lead Managers and the Company for the purchase of such
International Common Shares by other persons are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of
any non-defaulting International Manager or the Company except for the expenses
to be paid by the Company pursuant to Sections 6 and 8 hereof and except to the
extent provided in Section 10 hereof.
In the event that International Common Shares to which a default
relates are to be purchased by the non-defaulting International Managers or by
another party or parties, the Lead Managers or the Company shall have the right
to postpone the First or Second Closing Date, as the case may be, for not more
than five business days in order that the necessary changes in the Registration
Statement, Prospectus and any other documents, as well as any other
arrangements, may be effected. As used in this Agreement, the term
"International Manager" includes any person substituted for an International
Manager under this Section. Nothing herein will relieve a defaulting
International Manager from liability for its default.
12. Effective Date. This Agreement shall become effective
immediately as to Sections 6, 8, 10, 13 and 15 and, as to all other provisions,
(i) if at the time of execution of this Agreement the Registration Statement
has not become effective, at 2:00 p.m., California time, on the first full
business day following the effectiveness of the Registration Statement, or (ii)
if at the time of execution of this Agreement the Registration Statement has
been declared effective, at 2:00 p.m., California time, on the first full
business day following the date of execution of this Agreement; but this
Agreement shall nevertheless become effective at such earlier time after the
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Registration Statement becomes effective as you may determine on and by notice
to the Company or by release of any of the International Common Shares for sale
to the public. For the purposes of this Section 12, the International Common
Shares shall be deemed to have been so released upon the release for
publication of any newspaper advertisement relating to the International Common
Shares or upon the release by you of telegrams (i) advising International
Managers that the International Common Shares are released for public offerings
or (ii) offering the International Common Shares for sale to securities
dealers, whichever may occur first.
13. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by
notice to you or by you by notice to the Company at any time prior to the time
this Agreement shall become effective as to all its provisions, and any such
termination shall be without liability on the part of the Company to any
International Manager (except for the expenses to be paid or reimbursed by the
Company pursuant to Sections 6 and 8 hereof and except to the extent provided
in Section 10 hereof) or of any International Manager to the Company (except to
the extent provided in Section 10 hereof).
(b) This Agreement may also be terminated by you prior
to the First Closing Date by notice to the Company (i) if additional material
governmental restrictions, not in force and effect on the date hereof, shall
have been imposed upon trading in securities generally or minimum or maximum
prices shall have been generally established on the New York Stock Exchange or
on the American Stock Exchange or in the over the counter market by the NASD,
or trading in securities generally shall have been suspended on either such
Exchange or in the over the counter market by the NASD, or a general banking
moratorium shall have been established by federal, New York or California
authorities, (ii) if an outbreak of major hostilities or other national or
international calamity or any substantial change in political, financial or
economic conditions shall have occurred or shall have accelerated or escalated
to such an extent, as, in the judgment of the Lead Managers, to affect
adversely the marketability of the International 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 Prospectus or which is not reflected in the
Registration Statement or Prospectus but should be reflected therein in order
to make the statements or information contained therein not misleading in any
material respect, or (iv) if there shall be any action, suit or proceeding
pending or threatened, or there shall have been any development or prospective
development involving particularly the business or properties or securities of
the Company or any of its subsidiaries or the transactions contemplated by this
Agreement, which, in the reasonable judgment of the Lead Managers, may
materially and adversely affect the Company's business or earnings and makes it
impracticable or inadvisable to offer or sell the International Common Shares.
Any termination pursuant to this subsection (b) shall be without liability on
the part of any International Manager to the Company or on the part of the
Company to any International Manager (except for expenses to be paid or
reimbursed by the Company
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pursuant to Sections 6 and 8 hereof and except to the extent provided in
Section 10 hereof).
(c) This Agreement shall also terminate at 5:00 p.m.,
California time, on the tenth full business day after the Registration
Statement shall have become effective if the initial public offering price of
the International Common Shares shall not then as yet have been determined.
Any termination pursuant to this subsection (c) shall be without liability on
the part of any International Manager to the Company or on the part of the
Company to any International Manager (except for expenses to be paid or
reimbursed by the Company pursuant to Sections 6 and 8 hereof and except to the
extent provided in Section 10 hereof).
14. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several International
Managers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
International Manager 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 International Common Shares sold hereunder and
any termination of this Agreement.
15. Notices. All communications hereunder shall be in writing
and, if sent to the Lead Managers shall be mailed, delivered or telegraphed and
confirmed to you at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx, with a copy to Howard, Rice, Nemerovski, Canady,
Xxxx & Xxxxxx, Three Xxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxxxxxx, XX
00000, Attention: Xxxxxx X. Xxxxxxx; and if sent to the Company shall be
mailed, delivered or telegraphed and confirmed to the Company at 000 Xxxx Xxxx
Xxxx, #00-00, Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx 1646, Attention: President and
Chief Operating Officer and 0000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Chief Executive Officer with a copy to Fenwick & West LLP, Xxx Xxxx Xxxx
Xxxxxx, Xxxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxxxxx. Any of the parties
hereto may change the address for receipt of communications hereunder by giving
notice to the others.
16. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, including any substitute International
Managers pursuant to Section 11 hereof, and to the benefit of the officers and
directors and controlling persons referred to in Section 10, and in each case
their respective successors, personal representatives and assigns, and no other
person will have any right or obligation hereunder. No such assignment shall
relieve any party of its obligations hereunder. The term "successors" shall
not include any purchaser of the International Common Shares as such from any
of the International Managers merely by reason of such purchase.
17. Representation of International Managers. You will act as
Lead Managers for the several International Managers in connection with all
dealings hereunder, and any action under or in respect of this Agreement taken
by you jointly
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or by Xxxxxxxxxx Securities, as Lead Managers, will be binding upon all the
International Managers.
18. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
19. Applicable Law.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws (and not the laws pertaining to conflicts of
laws) of the State of California.
(b) The Company, by the execution and delivery of this
Agreement, agrees that, until the fifth anniversary date of the First Closing
Date, service of process may be made upon it at 0000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000 (or any successor pursuant to the last sentence of this paragraph) in San
Jose, California in any suit or proceeding against the Company instituted by
any International Manager or by any person controlling any International
Manager based on or arising under this Agreement in any United States federal
or state court in the State of California, City and County of San Francisco,
and expressly accepts and submits to the nonexclusive jurisdiction of any such
court in respect of any such suit or proceeding. The Company, by the execution
and delivery of this Agreement, irrevocably designates and appoints until the
fifth anniversary date of the First Closing Date (or until a successor is
appointed pursuant to the last sentence of this paragraph) Xxxxxxx Xxxxx and
all other persons who are the Chief Executive Officer, the President, the
Secretary or a Vice President of the Company during the five year period
following the First Closing Date as the authorized agents of the Company upon
whom process may be served in any suit or proceeding, it being understood that
the designation and appointment of Xx. Xxxxx and other persons presently
serving as such officers as such authorized agent shall become effective
immediately without any further action on the part of the Company and shall
become effective as to each other person who is hereafter elected or appointed
to any such office by the Company upon such election or appointment. The
Company represents to each International Manager that they have notified Xx.
Xxxxx and other persons presently serving as such officers of such designation
and appointment and that all such persons have accepted the same in writing and
that it will so notify, and obtain the consent in writing of, each person so
elected or appointed to any such office in the future. The Company further
agrees that, to the extent permitted by law, service of process upon any such
person shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding. The Company further agrees to take any
and all action, including the execution and filing of all such instruments and
documents, as may be necessary to continue such designation and appointment in
full force and effect for five years from the First Closing Date.
Notwithstanding the foregoing the Company agrees, if requested by you, to
appoint
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CT Corporation System in San Francisco, California as successor to such persons
on the terms provided above, provided such successor accepts such appointment
in writing.
Nothing in this Section 19 should be construed as a general
consent to service of process as to which any shareholder of the Company or any
other person may rely in connection with any suit or proceeding against the
Company.
20. General. This Agreement constitutes the entire agreement
of the parties to this Agreement and supersedes all prior written or oral and
all contemporaneous oral agreements, understandings and negotiations with
respect to the subject matter hereof. This Agreement may be executed in
several counterparts, each one of which shall be an original, and all of which
shall constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be
amended or modified, and the observance of any term of this Agreement may be
waived, only by a writing signed by the Company and you.
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34
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon
it will become a binding agreement between the Company and the several
International Managers including you, all in accordance with its terms.
Very truly yours,
FLEXTRONICS INTERNATIONAL LTD.
By:
------------------------------------
Chairman of the Board and
Chief Executive Officer
The foregoing Underwriting
Agreement is hereby confirmed and
accepted by us in San Francisco,
California as of the date first above
written.
UBS LIMITED
XXXXXXXXXX SECURITIES
XXXXX & COMPANY
By XXXXXXXXXX SECURITIES
By:
--------------------------------------
Senior Managing Director
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35
SCHEDULE A
Number of Firm
International Common
Name of International Manager Shares to be Purchased
----------------------------- ----------------------
UBS Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _______
Xxxxxxxxxx Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _______
Xxxxx & Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _______
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437,500
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