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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): OCTOBER 25, 1999
FLEXTRONICS INTERNATIONAL LTD.
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(Exact name of Registrant as specified in its charter)
SINGAPORE
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(State or other jurisdiction of incorporation)
<TABLE>
<S> <C>
0-23354 NOT APPLICABLE
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(Commission (IRS Employer
File Number) Identification No.)
</TABLE>
514 CHAI CHEE LANE, #04-13, BEDOK INDUSTRIAL ESTATE, SINGAPORE 469029
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(Address of principal executive offices) (Zip Code)
(65) 449-5255
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(Registrant's telephone number, including area code)
NOT APPLICABLE
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On October 25, 1999, Flextronics International Ltd. ("Flextronics") entered
into an Underwriting Agreement (the "Underwriting Agreement") with Banc of
America Securities LLC, Morgan Stanley & Co. Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Lehman Brothers Inc., SG Cowen Securities
Corporation and Thomas Weisel Partners LLC providing for the public offering of
6,000,000 Ordinary Shares of Flextronics, all of which are being sold by
Flextronics, at a public offering price of $67.6875 per share. In addition,
Flextronics granted the underwriters an option to purchase an additional 900,000
Ordinary Shares to cover over-allotments.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
The following exhibits are filed herewith:
1.01 Underwriting Agreement dated as of October 25, 1999 between
Flextronics International Ltd. and Banc of America Securities LLC,
Morgan Stanley & Co. Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation, Lehman Brothers Inc., SG Cowen Securities
Corporation and Thomas Weisel Partners LLC.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FLEXTRONICS INTERNATIONAL LTD.
Date: October 28, 1999 By: /s/ Robert R. B. Dykes
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Robert R. B. Dykes
President, Systems Group
'
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EXHIBIT INDEX
1.01 Underwriting Agreement dated as of October 25, 1999 between
Flextronics International Ltd. and Banc of America Securities LLC,
Morgan Stanley & Co. Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation, Lehman Brothers Inc., SG Cowen Securities
Corporation and Thomas Weisel Partners LLC.
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Exhibit 1.01
6,000,000 SHARES
FLEXTRONICS INTERNATIONAL LTD.
ORDINARY SHARES
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UNDERWRITING AGREEMENT
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October 25, 1999
Banc of America Securities LLC
Morgan Stanley & Co. Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
Lehman Brothers Inc.
SG Cowen Securities Corporation
Thomas Weisel Partners LLC
As Representatives of the Several Underwriters
c/o Banc of America Securities LLC
600 Montgomery Street
San Francisco, CA 94111
Dear Sirs:
1. Introductory. Flextronics International Ltd., a Singapore company
(the "Company"), proposes to issue and sell to you and to the several
underwriters named in Schedule A (the "Underwriters") 6,000,000 of its
authorized but unissued Ordinary Shares S$.01 par value each in the capital of
the Company (the "Ordinary Shares"). The
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6,000,000 shares to be sold by the Company are referred to as the "Firm Common
Shares." In addition, the Company has granted to the Underwriters an option to
purchase up to an additional 900,000 Ordinary Shares (the "Optional Common
Shares") as provided in Section 4(b). The Firm Common Shares and the Optional
Common Shares are collectively referred to as the "Common Shares." Banc of
America Securities LLC, Morgan Stanley & Co. Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Lehman Brothers Inc., SG Cowen Securities
Corporation and Thomas Weisel Partners LLC, have agreed to act as
representatives of the several Underwriters (in such capacity, the
"Representatives") in connection with the offering and sale of the Common
Shares.
The Company hereby confirms its agreement with respect to your purchase of the
Common Shares as follows:
2. Representations and Warranties of the Company. The Company hereby
represents, warrants and covenants to you (the "Underwriter") as follows:
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission"), in conformity with the Securities Act of
1933, as amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") thereunder, a Registration Statement on Form S-3 (File No.
333-87139), including a prospectus relating to the registration of the Common
Shares (as amended to the date hereof, the "Registration Statement"). The
Registration Statement has been declared effective by the Commission under the
Securities Act. The Company has also filed with, or shall promptly hereafter
file with the Commission, a final prospectus supplement specifically relating to
the Common Shares pursuant to Rule 424(b). The prospectus included in the
Registration Statement is hereinafter referred to as the "Basic Prospectus." The
term "Prospectus" means the Basic Prospectus together with the final prospectus
supplement specifically relating to the Common Shares. As used herein, the terms
"Registration Statement," "Basic Prospectus," and "Prospectus" shall include in
each case the material, if any, incorporated by reference therein or deemed
incorporated by reference therein pursuant to the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Exchange Act"). There have been delivered to you four signed
copies of the Registration Statement and all amendments and supplements thereto,
together with four copies of each exhibit filed therewith.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act which is or is deemed to be
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incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
(b) The Commission has not issued any order preventing or suspending
the use of the Basic Prospectus, and the Basic Prospectus has conformed in all
material respects to the requirements of the Act and the Rules and Regulations
and, as of its date, has not included any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
at the time the Registration Statement became effective, and at all times
subsequent thereto up to and including each Closing Date hereinafter mentioned,
the Registration Statement and the Prospectus, and any amendments or supplements
thereto, will contain all material statements and information required to be
included therein by the Act and the Rules and Regulations, and will in all
material respects conform to the requirements of the Act and the Rules and
Regulations, and neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, will include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, no
representation or warranty contained in this subsection 2(b) shall be applicable
to information contained in or omitted from the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriters, directly or through the Representatives, specifically for use
in the preparation thereof. Each preliminary prospectus and the Prospectus filed
with the Commission by electronic submission was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of
the Common Shares.
(c) The Company does not own or control, directly or indirectly, any
material corporation, association or other entity other than the subsidiaries
listed in Exhibit 21.1 to the Company's Annual Report on Form 10-K for the
Company's fiscal year ended March 31, 1999. The Company has been duly
incorporated and is validly existing as a public company under the laws of
Singapore. Each of the subsidiaries of the Company has been duly incorporated
and is validly existing in its jurisdiction of incorporation or formation. The
Company and each of its subsidiaries has full power and authority (corporate and
other) to own and lease their respective properties and conduct their respective
businesses; except as disclosed in the Registration Statement, the Company owns
all of the outstanding capital stock or joint venture interests of its
subsidiaries, free and clear of all claims, liens, charges and encumbrances; the
Company and each of its subsidiaries are in possession of and operating in
compliance with all authorizations, licenses, permits, consents, certificates
and orders material to the conduct of their respective businesses, all of which
are valid and in full force and effect; the Company and each of its subsidiaries
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which the ownership or leasing of
properties or the conduct of their respective businesses requires such
qualification, except for jurisdictions in which the failure to so qualify would
not have a material adverse effect upon the Company or the subsidiary; and no
proceedings has been instituted in any
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such jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
(d) The Company has an authorized share capital as set forth under
the heading "Capitalization" in the Prospectus and issued share capital as of
September 24, 1999, as set forth under the heading "Capitalization" in the
Prospectus; the issued and outstanding Ordinary Shares have been duly authorized
and validly issued, are fully paid, have been issued in compliance with all
federal and state securities laws, whether of Singapore, the United States or
otherwise, were not issued in violation of or subject to any preemptive rights
or other rights to subscribe for or purchase securities, and conform to the
description thereof contained in the Prospectus. All issued and outstanding
shares of capital stock of each subsidiary of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. Except as
disclosed in the Prospectus and the financial statements of the Company, and the
related notes thereto, included in the Prospectus, neither the Company nor any
subsidiary has outstanding any options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
obligations (except for options granted pursuant to plans described in the
Prospectus subsequent to the date of information set forth in the Prospectus).
The description of the Company's stock option, stock bonus and other stock
schemes, plans or arrangements, and the options or other rights granted and
exercised thereunder, set forth in the Prospectus accurately and fairly presents
the information required to be shown with respect to such schemes, plans,
arrangements, options and rights.
(e) The Common Shares to be purchased by the Underwriters from the
Company have been duly authorized and, when issued, delivered and paid for in
the manner set forth in this Agreement, will be duly authorized, validly issued
and fully paid, and will conform to the description thereof contained in the
Prospectus. No preemptive rights or other rights to subscribe for or purchase
exist with respect to the issuance and sale of the Common Shares by the Company
pursuant to this Agreement. No shareholder of the Company has any right which
has not been waived to require the Company to register the sale of any shares
owned by such shareholder under the Act in the public offering contemplated by
this Agreement. No further approval or authority of the shareholders or the
Board of Directors of the Company will be required for the issuance and sale of
the Common Shares to be sold by the Company as contemplated herein other than
the Board of Directors' approval of the list of purchasers of the Common Shares,
which will occur prior to the Closing.
(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,
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of the Company or any of its subsidiaries, and will not conflict with, result in
the breach or violation of, or constitute, either by itself or upon notice or
the passage of time or both, a default under any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries or any of its respective properties may be bound or affected
(except as to conflicts, breaches, violations or defaults of any of the
foregoing that individually or in the aggregate would not be material to the
Company), any statute or any authorization, judgment, decree, order, rule or
regulation of any court or any regulatory body, administrative agency or other
governmental body applicable to the Company or any of its subsidiaries or any of
their respective properties. No consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other governmental body
is required for the execution and delivery of this Agreement or the consummation
of the transactions contemplated by this Agreement, except for compliance with
the Act, the Blue Sky laws applicable to the public offering of the Common
Shares by the Underwriters and, if applicable, the clearance of such offering
with the National Association of Securities Dealers, Inc. (the "NASD").
(g) Arthur Andersen LLP, who have expressed their opinion with
respect to the consolidated financial statements and schedules filed with the
Commission as a part of the Registration Statement and included in the
Prospectus and in the Registration Statement, are independent accountants as
required by the Act, the Rules and Regulations and the Exchange Act.
(h) The consolidated financial statements and schedules of the
Company and its subsidiaries, and the related notes thereto, included in each
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of the respective
dates of such financial statements and schedules, and the results of operations
and changes in financial position of the Company and its subsidiaries for the
respective periods covered thereby. Such statements, schedules and related notes
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis as certified by the independent accountants named
in subsection 2(g). No other financial statements or schedules are required to
be included in the Registration Statement. The selected financial data set forth
in the Prospectus under the captions "Prospectus Supplement Summary--Summary
Consolidated Financial Information," "Capitalization" and "Selected Consolidated
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
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properties are bound; and there does not exist any state of facts which
constitutes an event of default on the part of the Company or any such
subsidiary as defined in such documents or which, with notice or lapse of time
or both, would constitute such an event of default.
(j) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which have not
been described or filed as required. The descriptions of the contracts so
described in the Prospectus are accurate; all such contracts are in full force
and effect on the date hereof; and neither the Company nor any of its
subsidiaries, nor to the best of the Company's knowledge, any other party is in
breach of or default under any of such contracts.
(k) There are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company's knowledge, threatened to which the
Company or any of its subsidiaries is or may be a party or of which property
owned or leased by the Company or any of its subsidiaries is or may be the
subject, or related to environmental or discrimination matters, which actions,
suits or proceedings might, individually or in the aggregate, prevent or
adversely affect the transactions contemplated by this Agreement or result in a
material adverse change in the condition (financial or otherwise), properties,
business, results of operations or, to the best of the Company's knowledge,
prospects of the Company and its subsidiaries; and no labor disturbance by the
employees of the Company or any of its subsidiaries exists or is imminent which
might be expected to affect adversely such condition, properties, business,
results of operations or, to the best of Company's knowledge, prospects. Neither
the Company nor any of its subsidiaries is a party or subject to the provisions
of any material injunction, judgment, decree or order of any court, regulatory
body, administrative agency or other governmental body.
(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
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material verbal or written agreement or other transaction which is not in the
ordinary course of business; (ii) the Company and its subsidiaries have not
sustained any material loss or interference with their respective businesses or
properties from fire, flood, windstorm, accident or other calamity, whether or
not covered by insurance; (iii) the Company has not paid or declared any
dividends or other distributions with respect to its issued share capital and
the Company and its subsidiaries are not in default in the payment of principal
or interest on any outstanding debt obligations; (iv) there has not been any
change in the share capital (other than upon the sale of the Common Shares
hereunder and the grant of options in the ordinary course of business or
exercise of options disclosed in the Prospectus) or indebtedness material to the
Company and its subsidiaries (other than in the ordinary course of business);
and (v) there has not been any material adverse change in the condition
(financial or otherwise), business, properties, results of operations or, to the
best of the Company's knowledge, prospects of the Company and its subsidiaries.
(n) Except as disclosed in or specifically contemplated by the
Prospectus, the Company and its subsidiaries have sufficient trademarks, trade
names, patent rights, mask works, copyrights, licenses, approvals and
governmental authorizations to conduct their businesses as now conducted; the
expiration of any trademarks, trade names, patent rights, mask works,
copyrights, licenses, approvals or governmental authorizations would not have a
material adverse effect on the condition (financial or otherwise), business,
results of operations or, to the best of the Company's knowledge, prospects of
the Company or its subsidiaries; and the Company has no knowledge of any
material infringement by it or its subsidiaries of trademark, trade name rights,
patent 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.
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(q) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(r) The Company has not distributed and will not distribute prior to
the Closing Date any offering material in connection with the offering and sale
of the Common Shares other than the Prospectus, the Registration Statement and
the other materials permitted by the Act.
(s) Each of the Company and its subsidiaries maintain insurance of
the types and in the amounts generally deemed adequate for its business,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against,
all of which insurance is in full force and effect.
(t) Neither the Company nor any of its subsidiaries has at any time
during the last five years (i) made any unlawful contribution to any candidate
for public office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof.
(u) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Ordinary Shares
to facilitate the sale or resale of the Common Shares.
(v) Subject to the approval of the list of purchasers by the Board
of Directors of the Company as referred to in (e) above, no transfer taxes are
required to be paid in connection with the sale and delivery of the Common
Shares to the Underwriter hereunder.
(w) The Ordinary Shares (including the Common Shares) are registered
pursuant to Section 12(g) of the Exchange Act and are listed on the Nasdaq
National Market, and the Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Ordinary Shares under
the Exchange Act or delisting the Ordinary Shares from the Nasdaq National
Market, nor has the Company received any notification that the Commission or the
NASD is contemplating terminating such registration or listing.
(x) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act, and, when read together with the other
information in the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Date, as the case may be,
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading.
Any certificate signed by an officer of the Company and delivered to
the Underwriter or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. Representations and Warranties of the Underwriters. The Underwriters
represent and warrant to the Company that the information set forth on the cover
page of the Prospectus with respect to price, underwriting discounts and
commissions and the information (other than the first, third, fourth and fifth)
paragraphs under "Underwriting" in the Prospectus was furnished to the Company
by and on behalf of the Underwriters for use in connection with the preparation
of the Prospectus and is correct in all material respects.
4. Purchase, Sale and Delivery of Common Shares.
(a) The Firm Common Shares; the First Closing Date. Upon the terms
herein set forth, the Company agrees to issue and sell to the several
Underwriters an aggregate of 6,000,000 Firm Common Shares. On the basis of the
representations, warranties and agreements herein contained, and upon the terms
but subject to the conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase from the Company the respective number of
Firm Common Shares set forth opposite their names on Schedule A. The purchase
price per Firm Common Share to be paid by the several Underwriters to the
Company shall be $65.1275 per share.
Delivery of certificates for the Firm Common Shares to be purchased by
the Underwriters and payment therefor shall be made at the offices of Banc of
America Securities LLC, 600 Montgomery Street, San Francisco, California (or
such other place as may be agreed to by the Company and the Representatives) at
6:00 a.m. San Francisco time, on October 29, 1999, or such other time and date
not later than 10:30 a.m. San Francisco time, on November 8, 1999 as the
Representatives shall designate by notice to the Company (the time and date of
such closing are called the "First Closing Date"). The Company hereby
acknowledges that circumstances under which the Representatives may provide
notice to postpone the First Closing Date as originally scheduled include, but
are in no way limited to, any determination by the Company or the
Representatives to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the provisions of Section
11.
(b) The Optional Common Shares; the Second. In addition, on the
basis of the representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the Company
hereby grants an option to the several Underwriters to purchase, severally and
not jointly, up to an aggregate of 900,000 Optional Common Shares from the
Company at the purchase price per share to be paid by the Underwriters for the
Firm Common Shares. The option granted hereunder is for use by the Underwriters
solely in covering any over-allotments in connection with
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the sale and distribution of the Firm Common Shares. The option granted
hereunder may be exercised at any time (but not more than once) upon notice by
the Representatives to the Company which notice may be given at any time within
30 days from the date of this Agreement. Such notice shall set forth (i) the
aggregate number of Optional Common Shares as to which the Underwriters are
exercising the option, (ii) the names and denominations in which the
certificates for the Optional Common Shares are to be registered and (iii) the
time, date and place at which such certificates will be delivered (which time
and date may be simultaneous with, but not earlier than, the First Closing Date;
and in such case the term "First Closing Date" shall refer to the time and date
of delivery of certificates for the Firm Common Shares and the Optional Common
Shares). Such time and date of delivery, if subsequent to the First Closing
Date, is called the "Second Closing Date" and shall be determined by the
Representatives and shall not be earlier than three nor later than five full
business days after delivery of such notice of exercise. If any Optional Common
Shares are to be purchased, (a) each Underwriter agrees, severally and not
jointly, to purchase the number of Optional Common Shares (subject to such
adjustments to eliminate fractional shares as the Representative may determine)
that bears the same proportion to the total number of Optional Common Shares to
be purchased as the number of Firm Common Shares set forth on Schedule A
opposite the name of such Underwriter bears to the total number of Firm Common
Shares and the Company agrees to sell the total number of Optional Common Shares
to be sold. The Representatives may cancel the option at any time prior to its
expiration by giving written notice of such cancellation to the Company.
(c) Public Offering of the Common Shares. The Representatives hereby
advise the Company that the Underwriters intend to offer for sale to the public,
as described in the Prospectus, their respective portions of the Common Shares
as soon after this Agreement has been executed as the Representatives, in their
sole judgment, have determined is advisable and practicable.
(d) Payment for the Common Shares. Payment for the Common Shares to
be sold by the Company shall be made at the First Closing Date (and, if
applicable, at the Second Closing Date) by wire transfer of immediately
available funds to the order of the Company.
It is understood that the Representatives have been authorized, for
their own account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the
Firm Common Shares and any Optional Common Shares the Underwriters have agreed
to purchase. Banc of America Securities LLC, individually and not as a
Representative of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representatives by the First Closing Date or
the Second Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any of
its obligations under this Agreement.
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(e) Delivery of the Common Shares. The Company shall deliver, or
cause to be delivered, to the Representatives for the accounts of the several
Underwriters certificates for the Firm Common Shares to be sold at the First
Closing Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The Company shall
also deliver, or cause to be delivered, to the Representatives for the accounts
of the several Underwriters, certificates for the Optional Common Shares the
Underwriters have agreed to purchase at the First Closing Date or the Second
Closing Date, as the case may be, against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price
therefor. The certificates for the Common Shares shall be in definitive form and
registered in such names and denominations as the Representatives shall have
requested at least two full business days prior to the First Closing Date (or
the Second Closing Date, as the case may be) and shall be made available for
inspection on the business day preceding the First Closing Date (or the Second
Closing Date, as the case may be) at a location in New York as the
Representatives may designate. Time shall be of the essence, and delivery at the
time and place specified in this Agreement is a further condition to the
obligations of the Underwriters.
(f) Delivery of Prospectus to the Underwriters. Not later than 12:00
p.m. on the second business day following the date the Common Shares are first
released by the Underwriters for the sale to the public, the Company shall
deliver or cause to be delivered, copies of the Prospectus in such quantities
and at such places as the Representatives shall request.
5. Covenants of the Company. The Company covenants and agrees that:
(a) If the filing of the Prospectus is required under Rule 424(b) of
the Rules and Regulations, the Company will file the Prospectus, properly
completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and
Regulations within the time period prescribed and will provide evidence
satisfactory to you of such timely filing. The Company will promptly advise you
in writing (i) of the receipt of any comments of the Commission, (ii) of any
request of the Commission for amendment of or supplement to the Registration
Statement, the Basic Prospectus or the Prospectus or for additional information,
and (iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of any
proceedings for that purpose. If the Commission shall enter any such stop order
at any time, the Company will use its best efforts to obtain the lifting of such
order at the earliest possible moment. The Company will not file any amendment
or supplement to the Registration Statement, the Basic Prospectus or the
Prospectus (including any amendment or supplement through incorporation by
reference of any report filed under the Exchange Act) of which you have not been
furnished with a copy a reasonable time prior to such filing or to which you
reasonably object or which is not in compliance with the Act and the Rules and
Regulations.
(b) The Company will prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration Statement
or the
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<PAGE> 12
Prospectus which in your judgment may be necessary or advisable to enable the
Underwriters to continue the distribution of the Common Shares and will use its
best efforts to cause the same to become effective as promptly as possible. The
Company will fully and completely comply with the provisions of Rules 424(b),
430A and 434, as applicable, of the Rules and Regulations with respect to
information omitted from the Registration Statement in reliance upon any such
Rule.
(c) If at any time within the nine-month period referred to in
Section 10(a)(3) of the Act during which a prospectus relating to the Common
Shares is required to be delivered under the Act any event occurs, as a result
of which the Prospectus, including any amendments or supplements, would include
an untrue statement of a material fact, or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or if it is necessary at any time to amend the Prospectus, including
any amendments or supplements, to comply with the Act or the Rules and
Regulations, the Company will promptly advise you thereof and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance and will use its best efforts to
cause the same to become effective as soon as possible; and, in case the
Underwriters are required to deliver a prospectus after such nine-month period,
the Company upon request, but at the expense of the Underwriters, will promptly
prepare such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after the end
of the first quarter ending after one year following the "effective date of the
Registration Statement" (as defined in Rule 158(c) of the Rules and
Regulations), the Company will make generally available to its security holders
an earning statement (which need not be audited) covering a period of 12
consecutive months beginning after the effective date of the Registration
Statement which will satisfy the provisions of the last paragraph of Section
11(a) of the Act.
(e) During such period as a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the Company, at
its expense, but only for the nine-month period referred to in Section 10(a)(3)
of the Act, will furnish to you or mail to your order copies of the Registration
Statement, the Prospectus, the Basic Prospectus and all amendments and
supplements to any such documents (including any documents incorporated or
deemed incorporated by reference therein) in each case as soon as available and
in such quantities as you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order
to qualify or register the Common Shares for sale under (or obtain exemptions
from the application of) the Blue Sky laws of such jurisdictions as you
designate (including those of Canada) and under the applicable securities laws
of such other nations as you may designate, will comply with such laws and will
continue such qualifications, registrations
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<PAGE> 13
and exemptions in effect so long as reasonably required for the distribution of
the Common Shares. The Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
jurisdiction where it is not presently qualified. The Company will advise you
promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Common Shares for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company, with your cooperation, will use its best
efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company will
furnish to Banc of America Securities LLC: (i) as soon as practicable after the
end of each fiscal year, copies of the Annual Report of the Company containing
the balance sheet of the Company as of the close of such fiscal year and
statements of income, shareholders' equity and cash flows for the year then
ended and the opinion thereon of the Company's independent public accountants;
(ii) as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on
Form 8-K or other report filed by the Company with the Commission, the NASD or
any securities exchange; and (iii) as soon as available, copies of any report or
communication of the Company mailed generally to holders of its Ordinary Shares.
(h) During the period of 90 days after the first date that any of
the Common Shares are released by you for sale to the public, without the prior
written consent of the Underwriter (which consent may be withheld at the sole
discretion of the Underwriter), the Company will not issue, offer, sell, grant
options to purchase or otherwise dispose of any of the Company's equity
securities or any other securities convertible into or exchangeable with its
Ordinary Shares or other equity security, other than pursuant to outstanding
stock options and warrants disclosed in the Prospectus and other than the grant
of options or the issuance of the Company's equity securities pursuant to the
Company's employee share option plans described in the Prospectus or the
issuance of Ordinary Shares in connection with acquisitions.
(i) The Company will apply the net proceeds of the sale of the
Common Shares sold by it substantially in accordance with its statements under
the caption "Use of Proceeds" in the Prospectus.
(j) During such period as a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the Company will
file all documents required to be filed with the Commission pursuant to Section
13, 14 or 15 of the Exchange Act in the manner and within the time periods
required by the Exchange Act.
6. Payment of Expenses. Whether or not the transactions contemplated
hereunder are consummated or this Agreement becomes effective or is terminated,
the Company agrees to pay all costs, fees and expenses incurred in connection
with the performance of its obligations hereunder and in connection with the
transactions
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<PAGE> 14
contemplated hereby, including without limiting the generality of the foregoing
(i) all expenses incident to the issuance and delivery of the Common Shares
(including all printing and engraving costs), (ii) all fees and expenses of the
registrar and transfer agent of the Ordinary Shares, (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the
Common Shares to the Underwriters, (iv) all fees and expenses of the Company's
counsel and the Company's independent accountants, including fees of counsel or
independent accountants with respect to any subsidiary of the Company, (v) all
costs and expenses incurred in connection with the printing, filing, shipping
and distribution of the Registration Statement, the Basic Prospectus and the
Prospectus (including all exhibits and financial statements) and all amendments
and supplements provided for herein, this Agreement, any Selected Dealers
Agreement, Underwriters' Power of Attorney or the Blue Sky memorandum, (vi) all
filing fees, attorneys' fees and expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the
Common Shares for offer and sale under the Blue Sky laws (including those of
Canada) and under the applicable securities laws of such other nations as you
may designate, (vii) the filing fee incident to the review and approval, if any,
of the Underwriters' participation in the offering and distribution of the
Common Shares by the NASD, and (viii) all other fees, costs and expenses
incident to the offering as would typically be disclosed in Part II of a
registration statement under the Act. Except as provided in this Section 6,
Section 8 and Section 10 hereof, the Underwriters shall pay all of their own
expenses, including the fees and disbursements of counsel (excluding those
relating to qualification, registration or exemption under the Blue Sky laws
(including those of Canada) and under the applicable securities laws of such
other nations as you may designate, and the Blue Sky memorandum). At the First
Closing Date, the Underwriters will reimburse the Company for an aggregate of
$500,000 of the expenses arising under this Section 6.
7. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Common Shares on the
First Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Company herein set forth as of the date hereof and
as of the First Closing Date as though then made and, with respect to the
Optional Common Shares, as of the Second Closing Date as though then made, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
(a) If the filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus
shall have been filed in the manner and within the time period required by Rule
424(b) of the Rules and Regulations; and prior to such Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or shall
be pending or, to the knowledge of the Company or you, shall be contemplated by
the Commission; and any request of the
14
<PAGE> 15
Commission for inclusion of additional information in either Registration
Statement, or otherwise, shall have been complied with to your satisfaction.
(b) You shall be satisfied that since the respective dates as of
which information is given in the Registration Statement and the Prospectus, (i)
there shall not have been any change in the authorized or issued share capital
of the Company or any of its subsidiaries other than pursuant to the exercise of
outstanding options disclosed in the Prospectus or any material change in the
indebtedness (other than in the ordinary course of business) of the Company or
any of its subsidiaries, (ii) except as set forth or contemplated by the
Registration Statement or the Prospectus, no material verbal or written
agreement or other transaction shall have been entered into by the Company or
any of its subsidiaries, which is not in the ordinary course of business or
which could result in a material reduction in the future earnings of the Company
and its subsidiaries, (iii) no loss or damage (whether or not insured) to the
property of the Company or any of its subsidiaries shall have been sustained
which materially and adversely affects the condition (financial or otherwise),
business, results of operations or prospects of the Company and its
subsidiaries, (iv) no legal or governmental action, suit or proceeding affecting
the Company or any of its subsidiaries which is material to the Company and its
subsidiaries or which affects or may affect the transactions contemplated by
this Agreement shall have been instituted or threatened, and (v) there shall not
have been any material change in the condition (financial or otherwise),
business, management, results of operations or prospects of the Company and its
subsidiaries which makes it impractical or inadvisable in the judgment of the
Underwriters to proceed with the public offering or purchase the Common Shares
as contemplated hereby.
(c) There shall have been furnished to you, on the Closing Date, in
form and substance satisfactory to you, except as otherwise expressly provided
below:
(i) (A) An opinion of Allen & Gledhill, counsel for the Company,
addressed to the Underwriters and dated the Closing Date, substantially to the
effect that:
(1) Each of the Company and its Singapore subsidiary has
been duly incorporated and is validly existing as a corporation (public
corporation in the case of the Company) under the laws of its jurisdiction of
incorporation, and has full corporate power and authority to own its properties
and conduct its business as described in the Registration Statement;
(2) The authorized capital stock of the Company is as set
forth under the caption "Capitalization" in the Prospectus, and the issued and
outstanding capital stock as of September 24, 1999 is as set forth under such
caption; 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
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<PAGE> 16
law; the outstanding Ordinary Shares were issued in compliance with all laws of
Singapore that impose any restrictions or requirements on, or otherwise
regulate, the sale of securities; and the Ordinary Shares conform to the
description thereof contained in the Prospectus;
(3) All of the issued and outstanding shares of the
Company's Singapore subsidiary have been duly and validly authorized and issued
and are fully paid; to such counsel's knowledge all shares of the Company's
subsidiaries are owned beneficially by the Company free and clear of all liens,
encumbrances, equities, claims, security interests, voting trusts or other
defects of title whatsoever, except as described in the Registration Statement;
(4) The certificates evidencing the Common Shares to be
delivered hereunder are in due and proper form under Singapore law, and when the
Company's seal thereon has been affixed in accordance with the Company's
Articles of Association, and delivered to you or upon your order against payment
of the agreed consideration therefor in accordance with the provisions of this
Agreement, the Ordinary Shares represented thereby will be duly authorized and
validly issued and fully paid, will not have been issued in violation of or
subject to any preemptive rights or other rights to subscribe for or purchase
securities contained in the Memorandum or Articles of Association or the Company
or arising under Singapore law and will conform in all respects to the
description thereof contained in the Prospectus;
(5) Except as disclosed in or specifically contemplated by
the Prospectus, to such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable for capital stock of the Company;
(6) To the best of such counsel's knowledge, there are no
legal or governmental actions, suits or proceedings pending against the Company
in Singapore which are required to be described in the Prospectus which are not
described as required;
(7) The Company has full right, power and authority under
Singapore law to enter into this Agreement and to sell and deliver the Ordinary
Shares to be sold by it to the Underwriter; this Agreement has been duly and
validly authorized by all necessary corporate action by the Company, has been
duly and validly executed and delivered by and on behalf of the Company, and is
a valid and binding agreement of the Company in accordance with its terms,
except as enforceability may be limited by general equitable principles,
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and except as to those provisions relating to
indemnity or contribution for liabilities arising under the Act as to which no
opinion need be expressed; and no approval, authorization, order, consent,
registration, filing, qualification, license or permit of or with any court,
regulatory, administrative or other governmental body in Singapore is required
for the execution and
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<PAGE> 17
delivery of this Agreement by the Company or the consummation of the
transactions contemplated by this Agreement;
(8) The execution and performance of this Agreement and the
consummation of the transactions herein contemplated will not violate any of the
provisions of the Memorandum and Articles of Association of the Company or its
Singapore subsidiary or, so far as is known to such counsel, violate any decree,
statute or rule of Singapore;
(9) To such counsel's knowledge, neither the Company nor its
Singapore subsidiary is in violation of its Memorandum and Articles of
Association, or other organizational documents, or in breach of or default with
respect to any provision of any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument known to such counsel
to which the Company or any such subsidiary is a party or by which it or any of
its properties may be bound or affected, except where such default would not
materially adversely affect the Company and its subsidiaries; and, to such
counsel's knowledge, the Company and its Singapore subsidiary are in compliance
with all decrees, statutes or governmental rule of Singapore, to which they are
subject, except where noncompliance would not materially adversely affect the
Company and its subsidiaries;
(10) The statements made in the Prospectus under
"Enforcement of Civil Liabilities" and "Description of Capital Shares," to the
extent they constitute summaries of the laws of Singapore, are accurate,
complete and fair summaries;
(11) The choice of California law as the law governing this
Agreement is valid and binding under the laws of Singapore, except to the extent
that any term of this Agreement or provision of California law applicable to
this Agreement is incompatible with the public policy of Singapore; the consent
to jurisdiction as provided in Section 19 of this Agreement is valid and binding
upon the Company under the laws of Singapore; and
(12) No stamp or other issuance or transaction taxes or
duties and no capital gains, income, withholding or other taxes are payable by
or on behalf of the Underwriters to the government of Singapore or any
subdivision or taxing authority thereof or therein in connection with (a) the
sale and delivery by the Company of the Common Shares to or for the account of
the Underwriters and (b) the sale and delivery of the Common Shares inside or
outside of Singapore by the Underwriters to the purchasers thereof (excluding
any Singapore income tax on the income of the Underwriters if its net income is
subject to tax by the government of Singapore).
In rendering such opinion, such counsel may state that with respect to
all matters of the laws of the United States, they are relying on the opinion of
Fenwick &
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<PAGE> 18
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 Underwriters and dated the Closing Date, substantially
to the effect that:
(1) Flextronics International (USA), Inc. (the "U.S. Sub")
has been duly incorporated and is validly existing and in good standing as a
corporation under the laws of the jurisdiction of its incorporation; the Company
and each of its subsidiaries is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction, if any, in the United States
in which the failure to so qualify would not have a material adverse effect on
the Company and its subsidiaries; and the U.S. Sub has full corporate power and
authority to own its properties and conduct its business as currently conducted;
(2) To such counsel's knowledge, the issued and outstanding
Ordinary Shares issued after August 2, 1995 were issued in compliance with
United States federal and California securities laws;
(3) All of the issued and outstanding shares of the U.S. Sub
have been duly and validly authorized and issued and are fully paid and
nonassessable and, to such counsel's knowledge, are owned beneficially by the
Company free and clear of all liens, encumbrances, equities, claims, security
interests, voting trusts or other defects of title whatsoever, except for liens
securing obligations under the Company's credit facility. The Ordinary Shares
will not have been issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities contained in any agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument listed on an appendix to such opinion, and reasonably acceptable to
counsel to the Underwriters;
(4) Except for options granted under employee stock option
or purchase plans or shares issuable in connection with acquisitions, each as
disclosed in or specifically contemplated by the Prospectus, to such counsel's
knowledge, there are no outstanding options, warrants or other rights calling
for the issuance of, and no commitments, plans or arrangements to issue, any
shares of capital stock of the Company or any security convertible into or
exchangeable for capital stock of the Company;
(5) a. The Registration Statement has become effective under
the Act, and, to such counsel's knowledge, no stop order suspending the
effectiveness of any Registration Statement or preventing the use of the
Prospectus has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated by the Commission; any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the
Rules and Regulations has been made in the manner and within the time period
required by such Rule 424(b);
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<PAGE> 19
b. The Registration Statement, the Prospectus and each
amendment or supplement thereto (except for the financial statements and
schedules included therein as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the Act, the
Rules and Regulations and the Exchange Act;
c. To such counsel's knowledge, there are no franchises,
leases, contracts, agreements or documents of a character required to be
disclosed in the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement which are not disclosed or filed or incorporated
by reference, as required;
d. To such counsel's knowledge, there are no legal or
governmental actions, suits or proceedings pending or threatened against the
Company which are required to be described in the Prospectus which are not
described as required;
(6) The Company has full right, power and authority to enter
into this Agreement and to sell and deliver the Ordinary Shares to be sold by it
to the Underwriters; this Agreement has been duly and validly authorized by all
necessary corporate action by the Company, has been duly and validly executed
and delivered by and on behalf of the Company, and is a valid and binding
agreement of the Company in accordance with its terms, except as enforceability
may be limited by general equitable principles, bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and except as to those provisions relating to indemnity or contribution for
liabilities arising under the Act as to which no opinion need be expressed; and
no approval, authorization, order, consent, registration, filing, qualification,
license or permit of or with any court, regulatory, administrative or other
governmental body is required under United States federal or California law for
the execution and delivery of this Agreement by the Company or the consummation
of the transactions contemplated by this Agreement, except such as have been
obtained and are in full force and effect under the Act and such as may be
required under applicable Blue Sky laws in connection with the purchase and
distribution of the Common Shares by the Underwriters and the clearance of such
offering with the NASD;
(7) The execution and performance of this Agreement and the
consummation of the transaction herein contemplated will not conflict with,
result in the breach of, or constitute, either by itself or upon notice or the
passage of time or both, a default under, any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument listed
on an appendix to such opinion, and reasonably acceptable to counsel to the
Underwriters, to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of its or their property may
be bound or affected which is material to the Company and its subsidiaries, or
violate any of the provisions of the Memorandum and Articles of Association, or
other organizational documents, of the Company or the U.S. Sub or, so far as is
known to such counsel, violate any statute, judgment, decree, order, rule or
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<PAGE> 20
regulation of any court or governmental body having jurisdiction over the
Company or the U.S. Sub or any of their respective property; and
(8) The U.S. Sub is not in violation of its Articles or
Certificate of Incorporation, as the case may be; and
(9) Each document filed pursuant to the Exchange Act (other
than the financial statements and supporting schedules included therein, as to
which no opinion need be rendered) and incorporated or deemed to be incorporated
by reference in the Prospectus complied when so filed as to form in all material
respects with the Exchange Act.
In rendering such opinion, such counsel may state that with respect to
all matters of the laws of Singapore or pertaining to the Memorandum or Articles
of Association of the Company, they are relying solely on the opinion of Allen &
Gledhill.
Fenwick & West LLP shall also include a statement to the effect that
nothing has come to such counsel's attention that would lead such counsel to
believe that, either at the effective date of the Registration Statement or at
the applicable Closing Date, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, contained or contains any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Fenwick & West LLP shall also provide a separate opinion, dated the
Closing Date, to the effect that the statements in the Prospectus under
"Taxation," to the extent they constitute summaries of tax laws of the United
States, are accurate, complete and fair summaries as of the applicable Closing
Date.
(ii) Such opinion or opinions of Howard, Rice, Nemerovski,
Canady, Falk & Rabkin, a Professional Corporation, and Arfat Selvam &
Gunasingham, counsel for the Underwriters, dated the Closing Date, with respect
to the incorporation of the Company, the sufficiency of all corporate
proceedings and other legal matters relating to this Agreement, the validity of
the Common Shares, the Registration Statement and the Prospectus and other
related matters as you may reasonably require, and the Company shall have
furnished to such counsel such documents and shall have exhibited to them such
papers and records as they may reasonably request for the purpose of enabling
them to pass upon such matters. In connection with such opinions, such counsel
may rely on representations or certificates of officers of the Company and
governmental officials.
(iii) A certificate of the Company executed by the President,
Systems and Administration and the President of the Americas of the Company,
dated the Closing Date, to the effect that:
(1) The representations and warranties of the Company set
forth in Section 2 of this Agreement are true and correct as of the date of
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<PAGE> 21
this Agreement and as of the Closing Date, as the case may be, and the Company
has complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied on or prior to the Closing Date;
(2) The Commission has not issued any order preventing or
suspending the use of the Prospectus or any Basic Prospectus filed as a part of
the Registration Statement or any amendment thereto; no stop order suspending
the effectiveness of the Registration Statement has been issued; and to the best
of the knowledge of the respective signers, no proceedings for that purpose have
been instituted or are pending under the Act;
(3) Each of the respective signers of the certificate has
carefully examined the Registration Statement and the Prospectus; to the best of
his knowledge, the Registration Statement and the Prospectus and any amendments
or supplements thereto contain all statements required to be stated therein
regarding the Company and its subsidiaries; and neither the Registration
Statement nor the Prospectus nor any amendment or supplement thereto includes
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(4) Since the initial date on which the Registration
Statement was filed, no agreement, written or oral, transaction or event has
occurred which should have been set forth in an amendment to the Registration
Statement or in a supplement to or amendment of any prospectus which has not
been disclosed in such a supplement or amendment:
(5) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as disclosed
in or contemplated by the Prospectus, there has not been any material adverse
change or a development involving a material adverse change in the condition
(financial or otherwise), business, properties, results of operations,
management or, to the best knowledge of the respective signing officers,
prospects of the Company and its subsidiaries; and no legal or governmental
action, suit or proceeding is pending or threatened against the Company or any
of its subsidiaries which is material to the Company and its subsidiaries,
whether or not arising from transactions in the ordinary course of business, or
which may adversely affect the transactions contemplated by this Agreement;
since such dates and except as so disclosed, neither the Company nor any of its
subsidiaries has entered into any verbal or written agreement or other
transaction not in the ordinary course of business or which could result in a
material reduction in the future earnings of the Company or incurred any
material liability or obligation, direct, contingent or indirect, made any
change in its capital stock, made any material change in its short-term debt or
funded debt or repurchased or otherwise acquired any of the Company's capital
stock; and the Company has not declared or paid any dividend, or made any other
distribution, upon its outstanding capital stock payable to shareholders of
record on a date prior to the Closing Date;
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(6) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act has downgraded or given notice of any intended or potential downgrading as
of any review for a possible change that does not indicate the direction of the
possible change in the rating accorded any securities of the Company; and
(7) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus and except as disclosed
in or contemplated by the Prospectus, the Company and its subsidiaries have not
sustained a material loss or damage by strike, fire, flood, windstorm, accident
or other calamity (whether or not insured).
(iv) On the Closing Date a letter addressed to you, from Arthur
Andersen LLP, independent accountants, in form and substance satisfactory to the
Underwriters.
(v) On the date hereof, the Company shall have furnished to the
Representatives an agreement in the form of Exhibit A hereto from each of the
executive officers and directors of the Company, and such agreement shall be in
full force and effect on each of the First Closing Date and the Second Closing
Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to Howard, Rice, Nemerovski, Canady, Falk & Rabkin, a Professional Corporation,
counsel for the Underwriters. The Company shall furnish you with such manually
signed or conformed copies of such opinions, certificates, letters and documents
as you request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the Closing Date is not so satisfied, this Agreement at
your election will terminate upon notification by you to the Company without
liability on the part of the Underwriters or the Company except for the expenses
to be paid or reimbursed by the Company pursuant to Sections 6 and 8 hereof and
except to the extent provided in Section 10 hereof.
8. Reimbursement of Underwriters' Expenses. Notwithstanding any
other provisions hereof, if this Agreement shall be terminated by you pursuant
to Sections 7 or 13, or if the sale to the Underwriters of the Common Shares at
the Closing is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse you upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by you and them
in connection with the proposed purchase and the sale of the Common Shares,
including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, telegraph charges and telephone charges
relating directly to the offering contemplated by the Prospectus. Any such
termination shall be without liability of any party to any other party except
that the
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<PAGE> 23
provisions of this Section, Section 6 and Section 10 shall at all times be
effective and shall apply.
9. Effectiveness of Registration Statement. The parties will use their
best efforts to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
10. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act against any losses, claims, damages, liabilities or expenses,
joint or several, to which any Underwriter or such controlling person may become
subject, under the Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Basic Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state in any of them a material fact required to be
stated therein or necessary to make the statements in any of them not
misleading, or arise out of or are based in whole or in part on any inaccuracy
in the representations and warranties of the Company contained herein or any
failure of the Company to perform its obligations hereunder or under law; and
will reimburse the Underwriters and each such controlling person for any legal
and other expenses as such expenses are reasonably incurred by the Underwriters
or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, the Basic
Prospectus, the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with the information furnished to the Company pursuant to
Section 3 hereof provided further, that the indemnity provided in this Section
10(a) with respect to the Basic Prospectus shall not inure to the benefit of the
Underwriters if the person asserting any loss, claim, charge, liability or
litigation based upon any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state therein a material fact
was not sent or given a copy of the Prospectus in which such untrue statement or
alleged untrue statement or omission or alleged omission was corrected within
the time required by the Act and the Rules and Regulations thereunder. In
addition to its other obligations under this Section 10(a), the Company agrees
that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, or any inaccuracy
in the representations and warranties of the Company herein or failure to
perform its obligations hereunder, all as described in this
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<PAGE> 24
Section 10(a), it will reimburse the Underwriters on a quarterly basis for all
reasonable legal or other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of its obligation to reimburse the Underwriters for such expenses
and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Underwriters shall
promptly return it together with interest, compounded daily, determined on the
basis of the prime rate (or other commercial lending rate for borrowers of the
highest credit standing) announced from time to time by Bank of America, N.A.
(the "Prime Rate"). Any such interim reimbursement payments which are not made
to the Underwriters within 30 days of a request for reimbursement, shall bear
interest at the Prime Rate from the date of such request. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims, damages,
liabilities or expenses to which the Company, or any such director, officer or
controlling person may become subject, under the Act, the Exchange Act, or other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of the Underwriters), insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon any untrue or alleged untrue statement of
any material fact contained in the Registration Statement, the Basic Prospectus,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Registration Statement, any Basic Prospectus, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company pursuant to Section 3 hereof; and will
reimburse the Company, or any such director, officer or controlling person for
any legal and other expense reasonably incurred by the Company, or any such
director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. In addition to its other obligations under this
Section 10(b), each of the Underwriters agrees that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 10(b) which relates to
written information furnished to the Company, it will reimburse the Company
(and, to the extent applicable, each officer, director or controlling person) on
a quarterly basis for all reasonable legal or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
24
<PAGE> 25
judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Company (and, to the extent
applicable, each officer, director or controlling person) for such expenses and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Company (and, to the
extent applicable, each officer, director or controlling person) shall promptly
return it to the Underwriters together with interest, compounded daily,
determined on the basis of the Prime Rate. Any such interim reimbursement
payments which are not made to the Company within 30 days of a request for
reimbursement, shall hear interest at the Prime Rate from the date of such
request. This indemnity agreement will be in addition to any liability which the
Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
such counsel in connection with the assumption of legal defenses in accordance
with the proviso to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than
one separate counsel representing the indemnified parties who are parties to
such action) or (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, in
each of which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party.
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<PAGE> 26
(d) If the indemnification provided for in this Section 10 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of any losses, claims, damages, liabilities or expenses referred to herein (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, from
the offering of the Common Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
or inaccuracies in the representations and warranties herein which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The respective relative benefits received by
the Company, on the one hand, and the Underwriters, on the other hand, shall be
deemed to be in the same proportion, in the case of the Company, as the total
price paid to the Company for the Common Shares sold by it to the Underwriters
(net of underwriting commissions but before deducting expenses) bears to the
total price to the public set forth on the cover of the Prospectus, and in the
case of the Underwriters as the underwriting commissions received by it bears to
the total of such amounts paid to the Company and received by the Underwriters
as underwriting commissions. The relative fault of the Company, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact or the
inaccurate or the alleged inaccurate representation and/or warranty relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in subparagraph (c) of this Section 10, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
subparagraph (c) of this Section 10 with respect to notice of commencement of
any action shall apply if a claim for contribution is to be made under this
subparagraph (d); provided, 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 Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 10
were determined solely by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. Notwithstanding the provisions of
this Section 10, the Underwriters shall not be required to contribute any amount
in excess of the amount of the total underwriting commissions received by the
Underwriters in connection with the Common Shares underwritten by it and
distributed to the public. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
26
<PAGE> 27
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) It is agreed that any controversy arising out of the operation
of the interim reimbursement arrangements set forth in Sections 10(a) and 10(b)
hereof, including the amounts of any requested reimbursement payments and the
method of determining such amounts, shall be settled by arbitration conducted
under the provisions of the Constitution and Rules of the Board of Governors of
the New York Stock Exchange, Inc. or pursuant to the Code of Arbitration
Procedure of the NASD. Any such arbitration must be commenced by service of a
written demand for arbitration or written notice of intention to arbitrate,
therein electing the arbitration tribunal. In the event the party demanding
arbitration does not make such designation of an arbitration tribunal in such
demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in Sections 10(a) and 10(b)
hereof and would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of such
Sections 10(a) and 10(b) hereof.
11. Default of One or More of the Several Underwriters. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Common Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Common Shares to be purchased on such date, the other
Underwriters shall be obligated, severally, and in the proportions that the
number of Firm Common Shares set forth opposite their respective names on
Schedule A bears to the aggregate number of Firm Common Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase the Common Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the First Closing Date or the Second Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Common
Shares and the aggregate number of Common Shares with respect to which such
default occurs exceeds 10% of the aggregate number of Common Shares to be
purchased on such date, and arrangements satisfactory to the Representatives and
the Company for the purchase of such Common Shares are not made within 48 hours
after such default, this Agreement shall terminate without liability of any
party to any party except that the provisions of Section 6, Section 8 and
Section 10 shall at all times be effective and shall survive such termination.
In any such case either the Representatives or the Company shall have the right
to postpone the First Closing Date or the Second Closing Date, as the case may
be, but in no event for longer than seven days in order that the required
changes, if any, to the Registration Statement and the Prospectus or any other
documents or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
11. Any
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<PAGE> 28
action taken under this Section 11 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
12. Effective Date. This Agreement shall become effective immediately
as to Sections 6, 8, 10, 13 and 15 and, as to all other provisions, at 9:00
a.m., California time, on the date of execution of this Agreement.
13. Termination. Without limiting the right to terminate this Agreement
pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to
you or by you by notice to the Company at any time prior to the time this
Agreement shall become effective as to all its provisions, and any such
termination shall be without liability on the part of the Company to the
Underwriters (except for the expenses to be paid or reimbursed by the Company
pursuant to Sections 6 and 8 hereof and except to the extent provided in Section
10 hereof) or of the Underwriters to the Company (except to the extent provided
in Section 10 hereof).
(b) This Agreement may also be terminated by you prior to the
Closing Date by notice to the Company (i) if additional material governmental
restrictions, not in force and effect on the date hereof, shall have been
imposed upon trading in securities generally or minimum or maximum prices shall
have been generally established on the New York Stock Exchange or on the
American Stock Exchange or in the over the counter market by the NASD, or
trading in securities generally shall have been suspended on either such
Exchange or in the over the counter market by the NASD, or a general banking
moratorium shall have been established by federal, New York or California
authorities, (ii) if an outbreak of major hostilities or other national or
international calamity or any substantial change in political, financial or
economic conditions shall have occurred or shall have accelerated or escalated
to such an extent, as, in the judgment of the Underwriters, to affect adversely
the marketability of the Common Shares, (iii) if any adverse event shall have
occurred or shall exist which makes untrue or incorrect in any material respect
any statement or information contained in the Registration Statement or the
Prospectus or which is not reflected in the Registration Statement or the
Prospectus but should be reflected therein in order to make the statements or
information contained therein not misleading in any material respect, or (iv) if
there shall be any action, suit or proceeding pending or threatened, or there
shall have been any development or prospective development involving
particularly the business or properties or securities of the Company or any of
its subsidiaries or the transactions contemplated by this Agreement, which, in
the reasonable judgment of the Underwriters, may materially and adversely affect
the Company's business or earnings and makes it impracticable or inadvisable to
offer or sell the Common Shares. Any termination pursuant to this subsection (b)
shall be without liability on the part of the Underwriters to the Company or on
the part of the Company to the Underwriters (except for expenses to be paid or
reimbursed by the Company pursuant to Sections 6 and 8 hereof and except to the
extent provided in Section 10 hereof).
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<PAGE> 29
14. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, of its officers and of the Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or the Company or any of
its or their partners, officers or directors or any controlling person, as the
case may be, and will survive delivery of and payment for the Common Shares sold
hereunder and any termination of this Agreement.
15. Notices. All communications hereunder shall be in writing and, if
sent to the Representatives shall be mailed, delivered or telegraphed and
confirmed to you at 600 Montgomery Street, San Francisco, California 94111,
Attention: Mark Kuperschmid, with a copy to Howard, Rice, Nemerovski, Canady,
Falk & Rabkin, A Professional Corporation, 1755 Embarcadero Road, Palo Alto, CA
94303, Attention: Daniel J. Winnike; and if sent to the Company shall be mailed,
delivered or telegraphed and confirmed to the Company at 514 Chai Chee Lane,
#04-13, Bedok Industrial Estate, Singapore 1646, Attention: President and Chief
Operating Officer and 2241 Lundy Avenue, San Jose, CA 95131, Attention: Chief
Executive Officer, with a copy to Fenwick & West LLP, Two Palo Alto Square, Palo
Alto, CA 94306, Attention: David Michaels. Any of the parties hereto may change
the address for receipt of communications hereunder by giving notice to the
others.
16. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, and to the benefit of the officers and
directors and controlling persons referred to in Section 10, and in each case
their respective successors, personal representatives and assigns, and no other
person will have any right or obligation hereunder. No such assignment shall
relieve any party of its obligations hereunder. The term "successors" shall not
include any purchaser of the Common Shares as such from the Underwriters merely
by reason of such purchase.
17. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
18. Applicable Law.
(a) This Agreement shall be governed by and construed in accordance
with the internal laws (and not the laws pertaining to conflicts of laws) of the
State of California.
(b) Any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United States of
America located in
29
<PAGE> 30
the City and County of San Francisco or the courts of the State of California in
each case located in the City and County of San Francisco (collectively, the
"Specified Courts"), and each party irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the enforcement of
a judgment of any such court (a "Related Judgment"), as to which such
jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such
party's address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive, to the maximum extent permitted by law,
any objection to the laying of venue of any suit, action or other proceeding in
the Specified Courts and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit, action or other proceeding
brought in any such court has been brought in an inconvenient forum. Each party
not located in the United States irrevocably appoints CT Corporation System,
which currently maintains a San Francisco office at 49 Stevenson Street, San
Francisco, California 94105, United States of America, as its agent to receive
service of process or other legal summons for purposes of any such suit, action
or proceeding that may be instituted in any state or federal court in the City
and County of San Francisco.
(c) With respect to any Related Proceeding, each party irrevocably
waives, to the fullest extent permitted by applicable law, all immunity (whether
on the basis of sovereignty or otherwise) from jurisdiction, service of process,
attachment (both before and after judgment) and execution to which it might
otherwise be entitled in the Specified Courts, and with respect to any Related
Judgment, each party waives any such immunity in the Specified Courts or any
other court of competent jurisdiction, and will not raise or claim or cause to
be pleaded any such immunity at or in respect of any such Related Proceeding or
Related Judgment, including, without limitation, any immunity pursuant to the
United States Foreign Sovereign Immunities Act of 1976, as amended.
Nothing in this Section 18 should be construed as a general consent to
service of process as to which any shareholder of the Company or any other
person may rely in connection with any suit or proceeding against the Company.
19. General. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in several
counterparts, each one of which shall be an original, and all of which shall
constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and you.
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<PAGE> 31
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon it
will become a binding agreement between the Company and the Underwriters
including you, all in accordance with its terms.
Very truly yours,
FLEXTRONICS INTERNATIONAL LTD.
By: /s/ ROBERT DYKES
----------------------------------------
Name: Robert Dykes
--------------------------------------
Its: President Systems Group
---------------------------------------
The foregoing Underwriting
Agreement is hereby confirmed and
accepted by us in San Francisco,
California as of the date first above written.
Banc of America Securities LLC
Morgan Stanley & Co. Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
Lehman Brothers Inc.
SG Cowen Securities Corporation
Thomas Weisel Partners LLC
Acting as Representatives of the Several
Underwriters named in the attached Schedule A
By BANC OF AMERICA SECURITIES LLC
By: /s/ STEVE P. ORTIZ
----------------------------------------
Steve P. Ortiz
Managing Director
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<PAGE> 32
SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF FIRM COMMON SHARES
UNDERWRITER TO BE PURCHASED
----------- ----------------------------
<S> <C>
Banc of America Securities LLC 1,800,000
Morgan Stanley & Co. Incorporated 1,800,000
Donaldson, Lufkin & Jenrette Securities 700,000
Corporation
SG Cowen Securities Corporation 700,000
Thomas Weisel Partners LLC 700,000
Lehman Brothers Inc. 300,000
TOTAL: 6,000,000
=========
</TABLE>
32
<PAGE> 33
EXHIBIT A
FORM OF LOCK-UP
Banc of America Securities LLC
Morgan Stanley Dean Witter.
SG Cowen
Donaldson, Lufkin & Jenrette
Thomas Weisel & Partners
Lehman Brothers Inc.
As Representatives of the Several Underwriters
c/o Banc of America Securities LLC
600 Montgomery Street
San Francisco, California 94111
RE: Public Offering of the Ordinary Shares of Flextronics International Ltd.
(the "Company")
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain Ordinary Shares
of the Company ("Ordinary Shares") or securities convertible into or
exchangeable or exercisable for Ordinary Shares. The Company proposes to carry
out a public offering of Ordinary Shares (the "Offering") for which you will act
as the representatives (the "Representatives") of the underwriters. The
undersigned recognizes that the Offering will be of benefit to the undersigned
and will benefit the Company by, among other things, raising additional capital
for its operations. The undersigned acknowledges that you and the other
underwriters are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering into underwriting arrangements with the Company with respect to the
Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not, without the prior written consent of Banc of America
Securities LLC (which consent may be withheld in its sole discretion), directly
or indirectly, sell, offer, contract or grant any option to sell (including,
without limitation, any short sale), pledge, transfer, establish an open "put
equivalent position" within the meaning of Rule 16a-1(h) under the Securities
Exchange Act of 1934, as amended, or otherwise dispose of any Ordinary Shares,
options or warrants to acquire Ordinary Shares, or securities exchangeable or
exercisable for or convertible into Ordinary Shares currently or hereafter owned
either of record or beneficially (as defined in Rule 13d-3 under Securities
Exchange Act of 1934, as amended) by the undersigned, or publicly announce the
undersigned's intention to do any of the foregoing, for a period commencing on
the date hereof and continuing to a date 90 days after the first date any of the
Ordinary Shares to be sold in the Offering are sold to the public; provided,
however, that the undersigned may sell up to an aggregate of _____ Ordinary
Shares without the prior written consent of Banc of America Securities LLC. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of Ordinary
Shares or securities convertible into or exchangeable or exercisable for
Ordinary Shares held by the undersigned except in compliance with the foregoing
restrictions.
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<PAGE> 34
This agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the
undersigned.
Dated: October ____, 1999
- -------------------------------------------------------
Printed Name of Holder
By:
----------------------------------------------------
Signature
- -------------------------------------------------------
Printed Name of Person Signing
(and indicate capacity of person signing if signing
as custodian, trustee, or on behalf of an entity)
34
