SMART Modular Technologies (WWH),
Inc.
______ Ordinary Shares
a/
($0.00016667 par value per share)
Form of Underwriting
Agreement
New York, New York
______, 2006
Citigroup
Global Markets Inc.
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Bear, Stearns & Co. Inc.
Needham & Company, LLC
Thomas Weisel Partners LLC
As Representatives of the several Underwriters,
c/o Citigroup
Global Markets Inc.
388 Greenwich Street
New York, New York 10013
and
c/o Lehman Brothers Inc.
745 7 th
Avenue
New York, New York 10019
and
c/o J.P. Morgan Securities Inc.
270 Park Avenue, Floor 5
New York, New York 10017
SMART Modular
Technologies (WWH), Inc., an exempted company incorporated under
the laws of the Cayman Islands (the “ Company
”), proposes to issue and sell to the several underwriters
named in Schedule I hereto (the “ Underwriters
”), for whom you (the “ Representatives ”)
are acting as representatives, ___ Ordinary Shares,
$0.00016667 par value per share (“ Ordinary Shares
”), of the Company, and the persons named in Schedule II
hereto (the “ Selling Shareholders ”) propose to
sell to the several Underwriters ___ Ordinary Shares (said
shares to be issued and sold by the Company and shares to be sold
by the Selling Shareholders collectively being hereinafter called
the “ Underwritten Securities ”). The Selling
Shareholders named in Schedule II hereto also propose to grant
to the Underwriters an option to purchase up to ___ additional
Ordinary Shares to cover over-allotments (the “
Option
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Plus an option
to purchase from the Selling Shareholders up to ___ additional
Securities to cover over-allotments.
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Securities ”; the Option Securities, together with
the Underwritten Securities, being hereinafter called the “
Securities ”). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and
the terms Representatives and Underwriters shall mean either the
singular or plural as the context requires. In addition, to the
extent that there is not more than one Selling Shareholder named in
Schedule II, the term Selling Shareholders shall mean the
singular. The use of the neuter in this Agreement shall include the
feminine and masculine wherever appropriate. Certain terms used
herein are defined in Section 20 hereof.
1.
Representations and Warranties.
(i) The
Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1.
(a) The Company has prepared
and filed with the Commission a registration statement (file number
333-129134) on Form S-1, including a related preliminary
prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, has become
effective. The Company may have filed one or more amendments
thereto, including a related preliminary prospectus, each of which
has previously been furnished to you. The Company will file with
the Commission a final prospectus in accordance with
Rule 424(b). As filed, such final prospectus shall contain all
information required by the Act and the rules thereunder and,
except to the extent the Representatives shall agree in writing to
a modification, shall be in all material respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the
Registration Statement did, and when the Prospectus is first filed
in accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any date on which Option Securities are purchased,
if such date is not the Closing Date (a “ settlement
date ”), the Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date
and any settlement date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Prospectus (or any supplement
thereto), it being
3
understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8
hereof.
(c) (i) The Disclosure
Package and the price to the public, the number of Underwritten
Securities, the number of Option Securities and the underwriting
discount on the cover page of the Prospectus, when taken together
as a whole, and (ii) each electronic roadshow when taken
together with the Disclosure Package, and the price to the public,
the number of Underwritten Securities, the number of Option
Securities and the underwriting discount on the cover page of the
Prospectus, do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 8 hereof.
(d) (i) At the time of
filing the Registration Statement and (ii) as of the Execution
Time (with such date being used as the determination date for
purposes of this clause) (ii), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(e) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated by reference therein that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of
the information described as such in Section 8
hereof.
(f) Each of the Company and
its subsidiaries has been duly organized and is validly existing as
a corporation, an exempted company or other entity in good standing
under the laws of the jurisdiction in which it is chartered or
organized with full corporate power or other power and authority to
own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus and the
Disclosure Package, and is duly qualified to do business as a
foreign entity and is in good standing under the laws of each
jurisdiction which requires such qualification, except to the
extent that the failure to be so qualified to do business would not
have a Material Adverse Effect.
(g) All the outstanding shares
of capital stock of each subsidiary of the Company have been duly
authorized and validly issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Prospectus and the
Disclosure Package, all outstanding shares of capital stock of the
subsidiaries of the Company are owned by the
4
Company either
directly or through its wholly owned subsidiaries free and clear of
any security interests, claims, liens or encumbrances.
(h) The Company’s
authorized equity capitalization is as set forth in the Prospectus;
the share capital of the Company conforms in all material respects
to the description thereof contained in the Prospectus and the
Disclosure Package; the outstanding Ordinary Shares (including the
Securities being sold hereunder by the Selling Shareholders) have
been duly authorized and validly issued and are fully paid and
nonassessable; the Securities being issued and sold hereunder by
the Company have been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities
being sold hereunder have been approved for listing on the Nasdaq
National Market; the certificates for the Securities are in valid
and sufficient form; the holders of outstanding shares of share
capital of the Company are not entitled to preemptive or other
rights to subscribe for the Securities; and, except as set forth in
the Prospectus and the Disclosure Package, no options, warrants or
other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests
in the Company are outstanding.
(i) There is no franchise,
contract or other document of a character required to be described
in the Registration Statement, the Statutory Prospectus or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements in the
Prospectus under the headings “Description of Share
Capital”, “Material United States Federal Income Tax
Considerations”, and “Certain Cayman Islands Tax
Considerations” fairly summarize the matters therein
described.
(j) This Agreement has been
duly authorized, executed and delivered by the Company.
(k) The Company is not and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the
Prospectus and the Disclosure Package, will not be, an
“investment company” as defined in the Investment
Company Act of 1940, as amended.
(l) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body or self-regulatory organization is required in
connection with the transactions contemplated herein, except such
as have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in
the manner contemplated herein and in the Prospectus and the
Disclosure Package or relate to the review of the transactions
contemplated by this Agreement by the National Association of
Securities Dealers, Inc.
(m) Neither the issue and sale
of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries
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pursuant to,
(1) the charter or by-laws of the Company or any of its
subsidiaries, (2) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, or (3) any statute,
law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or any of its subsidiaries or any of its or their properties,
except, in the cases of clause (2) and (3), as would not,
singly or in the aggregate, have a Material Adverse
Effect.
(n) No holders of securities
of the Company have rights to the registration of such securities
under the Registration Statement.
(o) The consolidated
historical financial statements and schedules of the Company and
its consolidated subsidiaries included in the Prospectus, the
Disclosure Package and the Registration Statement present fairly in
all material respects the financial condition, results of
operations and cash flows of the Company as of the dates and for
the periods indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth
under the captions “Summary — Summary Financial
Data” and “Selected Financial Data” in the
Statutory Prospectus, the Prospectus and the Registration Statement
fairly present, on the basis stated in the Prospectus, the
Disclosure Package and the Registration Statement, the information
included therein.
(p) No action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the
knowledge of the Company, threatened that (1) could reasonably
be expected to have a material adverse effect on the ability of the
Company to perform this Agreement or the consummation of any of the
transactions contemplated hereby or (2) could, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect, except as set forth in or contemplated in the Prospectus
and the Disclosure Package (exclusive of any supplement
thereto).
(q) Each of the Company and
its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
All material properties and assets of the Company are, and at the
Closing Date will be, free and clear of any material liens,
charges, encumbrances or restrictions, except as set forth in the
Prospectus and the Disclosure Package. The Company has good and
marketable title to all personal property it purports to own,
except as set forth in the Prospectus (exclusive of any supplement
thereto) and the Disclosure Package, except where the failure to
have good or marketable title would not, singly or in the
aggregate, have a Material Adverse Effect.
(r) Neither the Company nor
any subsidiary is in violation or default of (1) any provision
of its charter or bylaws, (2) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation,
6
condition,
covenant or instrument to which it is a party or bound or to which
its property is subject, or (3) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except, in the cases of clauses
(2) and (3) as would not, singly or in the aggregate,
have a Material Adverse Effect.
(s) To the knowledge of the
Company, KPMG LLP, who have certified certain financial statements
of the Company and its consolidated subsidiaries and delivered
their report with respect to the audited consolidated financial
statements and schedules included in the Prospectus and the
Disclosure Package, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(t) There are no stamp or
other issuance or transfer taxes or duties or other similar fees or
charges required to be paid in connection with the execution and
delivery of this Agreement or the issuance or sale by the Company
of the Securities, except as otherwise stated under the heading
“Certain Cayman Islands Tax Considerations” in the
Statutory Prospectus and the Prospectus.
(u) The Company has filed all
non-U.S., U.S. federal, state and local tax returns that are
required to be filed or has requested extensions for the filing
thereof (except in any case in which the failure so to file would
not, singly or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto)) and the Disclosure Package, and has
paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine
or penalty that is currently being contested in good faith or as
would not, singly or in the aggregate, have a Material Adverse
Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto) and the Disclosure
Package.
(v) No labor problem or
dispute with the employees of the Company or any of its
subsidiaries exists or to the Company’s knowledge is
threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of
its or its subsidiaries’ principal suppliers, contractors or
customers, that would, singly or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) and the Disclosure
Package.
(w) The Company and each of
its subsidiaries are insured by insurers of financial
responsibility against such material losses and risks and in such
amounts as are prudent and customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety
bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors
are in full force and effect; the Company and its subsidiaries are
in material compliance with the terms of such policies and
instruments; there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or
7
defending under
a reservation of rights clause; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such subsidiary has
any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not, singly or in the
aggregate, have a Material Adverse Effect, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto) and the Disclosure Package.
(x) No subsidiary of the
Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
by the Prospectus (exclusive of any supplement thereto) and the
Disclosure Package.
(y) The Company and its
subsidiaries possess all material licenses, certificates, permits
and other authorizations issued by the appropriate U.S. federal,
state or non-U.S. regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material
Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) and the Disclosure
Package.
(z) The Company and each of
its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that
(1) transactions are executed in accordance with
management’s general or specific authorizations;
(2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (3) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (4) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(aa) The Company has not
taken, directly or indirectly, any action designed to or that has
constituted or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(bb) The Company and its
subsidiaries are (1) in compliance with any and all applicable
non-U.S., U.S. federal, state and local laws and regulations
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“ Environmental Laws ”),
(2) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(3) have not
8
received notice
of any actual or potential liability under any Environmental Law,
except where such non-compliance with Environmental Laws, failure
to receive required permits, licenses or other approvals, or
liability would not, singly or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) and the Disclosure
Package. Except as set forth in the Prospectus (exclusive of any
supplement thereto) and the Disclosure Package, neither the Company
nor any of the subsidiaries has been named as a “potentially
responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended.
(cc) In the ordinary course of
its business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties); on the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto) and the
Disclosure Package.
(dd) Neither the Company nor
any of its subsidiaries maintains or is required to contribute to a
“welfare plan” (as defined in Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended
(“ ERISA ”)) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than
“continuation coverage” (as defined in Section 602
of ERISA)); each “pension plan” (as defined in
Section 3(2) of ERISA) and welfare plan established or
maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently
applicable provisions of ERISA; and neither the Company nor any of
its subsidiaries has incurred or could reasonably be expected to
incur any liability under Title IV of ERISA.
(dd) There is and has been no
failure on the part of the Company to comply with any provision of
the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “ Sarbanes Oxley
Act ”), including Section 402 related to loans and
Section 302 and 906 related to certifications.
(ee) SMART Modular
Technologies, Inc., SMART Modular Technologies (Europe) Limited,
SMART Modular Technologies (Puerto Rico) Inc. and SMART Modular
Technologies Sdn. Bhd. are the only “significant
subsidiaries” of the Company (as defined by Rule 1-02 of
Regulation S-X under the Act).
(ff) The Company owns,
possesses or can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual
property (collectively, the “ Intellectual Property
”) necessary to conduct its business as now conducted or as
proposed in the Prospectus to be conducted by it, except to the
extent that the failure to own, possess or
9
acquire such
Intellectual Property would not have a Material Adverse Effect. The
Company has not received any notice of infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property that, if determined adversely to the Company, would
individually or in the aggregate have a Material Adverse
Effect.
(gg) Each of the Company and
its subsidiaries has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15 under
the Exchange Act); such disclosure controls and procedures are
designed to ensure that information required to be disclosed by the
Company and each of its subsidiaries is accumulated and
communicated to the management of the Company and each of its
subsidiaries, including their respective principal executive
officers and principal financial officers, as appropriate, to allow
timely decisions regarding required disclosure.
(hh) The Company has not
distributed and, prior to the later to occur of any Closing Date
and completion of the distribution of the Securities, will not
distribute any offering material in connection with the offering
and sale of the Securities other than the Preliminary Prospectus,
the Prospectus and the Disclosure Package.
(ii) The Company has not taken
any action or omitted to take any action (such as issuing any press
release relating to any Securities without an appropriate legend)
which may result in the loss by any of the Underwriters of the
ability to rely on any stabilization safe harbor provided by the
Financial Services Authority under the Financial Services and
Markets Act 2000 (the “ FSMA ”). The Company has
been informed of the guidance relating to stabilization provided by
the Financial Services Authority, in particular in Section MAR
2 Annex 2G of the Financial Services Handbook.
Any certificate
signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with
the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each
Underwriter.
(ii) Each
Selling Shareholder represents and warrants to, and agrees with,
severally and not jointly each Underwriter that:
(a) Such Selling Shareholder
is the record and beneficial owner of the Securities to be sold by
it hereunder free and clear of all liens, encumbrances, equities
and claims and has duly endorsed such Securities in blank, and,
assuming that each Underwriter acquires its interest in the
Securities it has purchased from such Selling Shareholder without
notice of any adverse claim (within the meaning of
Section 8-105 of the New York Uniform Commercial Code (“
UCC ”)), each Underwriter that has purchased such
Securities delivered on the Closing Date to The Depository Trust
Company or other securities intermediary by making payment therefor
as provided herein, and that has had such Securities credited to
the securities account or accounts of such Underwriters maintained
with The Depository Trust Company or such other securities
intermediary will have acquired a security entitlement (within the
meaning of Section 8-102(a)(17) of the UCC) to such Securities
purchased by such Underwriter, and no action based on an
10
adverse claim
(within the meaning of Section 8-105 of the UCC) may be
asserted against such Underwriter with respect to such
Securities.
(b) Such Selling Shareholder
has not taken, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(c) Certificates in negotiable
form for such Selling Shareholder’s Securities have been
placed in custody, for delivery pursuant to the terms of this
Agreement, under a Custody Agreement and Power of Attorney duly
authorized (if applicable) executed and delivered by such Selling
Shareholder, in the form heretofore furnished to you (the “
Custody Agreement ”) with Computershare Shareholder
Services, Inc., as Custodian (the “ Custodian
”); the Securities represented by the certificates so held in
custody for each Selling Shareholder are subject to the interests
hereunder of the Underwriters; the arrangements for custody and
delivery of such certificates, made by such Selling Shareholder
hereunder and under the Custody Agreement, are not subject to
termination by any acts of such Selling Shareholder, or by
operation of law, whether by the death or incapacity of such
Selling Shareholder or the occurrence of any other event; and if
any such death, incapacity or any other such event shall occur
before the delivery of such Securities hereunder, certificates for
the Securities will be delivered by the Custodian in accordance
with the terms and conditions of this Agreement and the Custody
Agreement as if such death, incapacity or other event had not
occurred, regardless of whether or not the Custodian shall have
received notice of such death, incapacity or other
event.
(d) No consent, approval,
authorization or order of any court or governmental agency or body
is required for the consummation by such Selling Shareholder of the
transactions contemplated herein, except such as may have been
obtained under the Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals as have been obtained.
(e) Neither the sale of the
Securities being sold by such Selling Shareholder nor the
consummation of any other of the transactions herein contemplated
by such Selling Shareholder or the fulfillment of the terms hereof
by such Selling Shareholder will conflict with, result in a breach
or violation of, or constitute a default under (i) any law or,
if such Selling Shareholder is a corporate entity, the charter or
by-laws of such Selling Shareholder, (ii) the terms of any
indenture or other agreement or instrument to which such Selling
Shareholder or any of its subsidiaries, if applicable, is a party
or bound, or (iii) any judgment, order or decree applicable to such
Selling Shareholder or any of its subsidiaries, if applicable, of
any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over such Selling
Shareholder or any of its subsidiaries, if applicable, except in
the case of clause (ii) as would not, individually or in the
aggregate, result in a Material Adverse Effect or have a material
adverse effect on the ability of such Selling Shareholder to
consummate the offering of the Securities or otherwise perform its
obligations under this Agreement.
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(f) Such Selling Shareholder
is familiar with the Registration Statement, the Prospectus and the
Disclosure Package and has no knowledge of any material fact,
condition or information not disclosed in the Prospectus, the
Disclosure Package or any supplement thereto which has adversely
affected or may adversely affect the business of the Company or any
of its subsidiaries.
(g) In respect of any
statements in or omissions from the Registration Statement or the
Prospectus or any supplements thereto made in reliance upon and in
conformity with information furnished in writing to the Company by
any Selling Shareholder specifically for use in connection with the
preparation thereof, such Selling Shareholder hereby makes the same
representations and warranties to each Underwriter as the Company
makes to such Underwriter under paragraph (i)(b) of this Section.
Such Selling Shareholder, the Company and the Underwriters
acknowledge that the statements with regard to such Selling
Shareholder or its affiliates set forth in “Summary
-
Our Principal Investors” and
“Principal and Selling Shareholder” constitute the only
information furnished in writing by such Selling Shareholder for
inclusion in the Registration Statement, the Statutory Prospectus,
the Prospectus and any supplements thereto.
Any certificate
signed by any Selling Shareholder or, if applicable, any officer
thereof and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by such Selling
Shareholder, as to matters covered thereby, to each
Underwriter.
2.
Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company and the Selling Shareholders agree,
severally and not jointly, to issue and sell, in the case of the
Company, and to sell, in the case of the Selling Shareholder, to
each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company and the Selling Shareholders,
at a purchase price of $____ per share, the amount of the
Underwritten Securities set forth opposite such Underwriter’s
name in Schedule I hereto.
(b) Subject
to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling
Shareholders named in Schedule II hereto hereby grant an
option to the several Underwriters to purchase, severally and not
jointly, up to ___Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at
any time on or before the 30th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to such
Selling Shareholders setting forth the number of shares of the
Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The maximum
aggregate number of Option Securities to be sold by the Selling
Shareholders is ___. The maximum number of Option Securities which
each Selling Shareholder agrees to sell is set forth in
Schedule II hereto. In the event that the Underwriters
exercise less than their full over-allotment option, the number of
Option Securities to be issued and sold by each Selling Shareholder
listed on Schedule II shall be, as nearly as practicable, in
the same proportion as the maximum number of Option Securities to
be issued and sold by each Selling Shareholder and the number of
Option Securities to be sold. The number of Option
12
Securities to
be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased
by the several Underwriters as such Underwriter is purchasing of
the Underwritten Securities, subject to such adjustments as you in
your absolute discretion shall make to eliminate any fractional
shares.
3.
Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or
before the third Business Day prior to the Closing Date) shall be
made at 10:00 AM, New York City time, on ___, 2006, or at such time
on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement among the Representatives,
the Company and the Selling Shareholders or as provided in
Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the “ Closing
Date ”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the respective aggregate purchase prices of
the Securities being sold by the Company and each of the Selling
Shareholders to or upon the order of the Company and the Selling
Shareholders by wire transfer payable in same-day funds to the
accounts specified by the Company and the Selling Shareholders.
Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise
instruct.
The Company will
pay all applicable state transfer taxes, if any, involved in the
transfer to the several Underwriters of the Securities to be
purchased by them from such Selling Shareholder and the respective
Underwriters will pay any additional stock transfer taxes involved
in further transfers.
If the option
provided for in Section 2(b) hereof is exercised after the third
Business Day prior to the Closing Date, the Selling Shareholders
named in Schedule II hereto will deliver the Option Securities
(at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after
exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the
order of the Selling Shareholders named in Schedule II by wire
transfer payable in same-day funds to the accounts specified by the
Selling Shareholders named in Schedule II hereto. If
settlement for the Option Securities occurs after the Closing Date,
such Selling Shareholders will deliver to the Representatives on
the settlement date for the Option Securities, and the obligation
of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4.
Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public
as set forth in the Prospectus.
13
(i) The
Company agrees with the several Underwriters that:
(a) Prior to
the termination of the offering of the Securities, the Company will
not file any amendment of the Registration Statement or supplement
to the Prospectus or any Rule 462(b) Registration Statement unless
the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement
to which you reasonably object. The Company will cause the
Prospectus, properly completed, and any supplement thereto to be
filed in a form approved by the Representatives with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission,
(2) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed
or become effective, (3) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the
Prospectus or for any additional information, (4) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any
proceeding for that purpose and (5) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any
such stop order or the occurrence of any such suspension or
objection and, upon such issuance, occurrence or objection, to
obtain as soon as possible the withdrawal thereof of such stop
order or relief from such occurrence or objection, including, if
necessary, by filing an amendment to the Registration Statement or
a new registration statement and using its best efforts to have
such amendment or new registration statement declared effective as
soon as practicable.
(b) If, at
any time prior to the filing of the Prospectus pursuant to
Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which
they were made at such time not misleading, the Company will
(1) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented;
(2) amend or supplement the Disclosure Package to correct such
statement or omission; and (3) supply any amendment or
supplement to you in such quantities as you may reasonably
request.
(c) If, at
any time when a prospectus relating to the Securities is required
to be delivered under the Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 172), any
event occurs as a result of which the Prospectus as then
supplemented would include any untrue statement of a material fact
or omit to state
14
any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act or
the rules thereunder, the Company promptly will (1) notify the
Representatives of any such event, (2) prepare and file with
the Commission, subject to the second sentence of paragraph (i)(a)
of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and
(3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(d) As soon
as practicable, the Company will make generally available to its
security holders and to the Representatives an earnings statement
or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and
Rule 158.
(e) The
Company will furnish to the Representatives and counsel for the
Underwriters conformed copies of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act (including
in circumstances where such requirement may be satisfied pursuant
to Rule 172), as many copies of each Preliminary Prospectus,
the Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as the Representatives may reasonably
request.
(f) The
Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications
in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
taxation in excess of a nominal amount or to service of process in
suits, other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so
subject.
(g) The
Company will not, without the prior written consent of each of
Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and
Lehman Brothers Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company) directly or indirectly,
including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any Ordinary Shares or any
securities convertible into, or exercisable, or exchangeable for
such Ordinary Shares; or publicly announce an intention to effect
any such transaction, for a period of 180 days after the date
of this Agreement, provided , however , that the
Company may register, issue and sell Ordinary Shares pursuant to
the transactions contemplated by this Agreement and may file a
registration statement on Form S-8 and issue and sell Ordinary
Shares pursuant to any employee stock option plan, stock ownership
plan or dividend
15
reinvestment
plan of the Company in effect at the Execution Time and the Company
may issue Ordinary Shares issuable upon the conversion of
securities or the exercise of warrants outstanding at the Execution
Time. Notwithstanding anything herein to the contrary, if (1)
during the last 17 days of the 180-day restricted period, the
Company issues an earnings release or material news or a material
event relating to the Company occurs or (2) prior to the
expiration of the 180-day restricted period, the Company announces
that it will release earnings results during the 16-day period
beginning on the last day of the 180-day period, the restrictions
imposed by this Section 5(i)(f) shall continue to apply until
the expiration of the 18-day period beginning on the issuance of
the earnings release or the occurrence of the material news or
material event.
(h) The
Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the
Securities.
(i) The
Company will not take any action or omit to take any action (such
as issuing any press release relating to any Securities without an
appropriate legend) which may result in the loss by any of the
Underwriters of the ability to rely on any stabilization safe
harbor provided by the Financial Services Authority under the
FSMA.
(j) The
Company agrees to pay the costs and expenses relating to the
following matters: (1) the preparation, printing or
reproduction and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto),
each Preliminary Prospectus, the Prospectus, and each Issuer Free
Writing Prospectus and each amendment or supplement to any of them;
(2) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and each Issuer Free
Writing Prospectus, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities;
(3) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of
the Securities; (4) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (5) the
registration of the Securities under the Exchange Act and the
listing of the Securities on the Nasdaq National Market;
(6) any registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such registration and
qualification); (7) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (8) the transportation
and other expenses (exclusive of expenses incurred in connection
with the chartering of any aircraft) incurred by or on behalf of
Company representatives in connection with presentations to
prospective purchasers of the Securities; (9) 50% of expenses
incurred by the Representatives and the Company in connection with
the chartering of any aircraft in connection with the presentations
to
16
prospective
purchasers of the Securities; (10) the fees and expenses of
the Company’s accountants and the fees and expenses of
counsel (including local and special counsel) for the Company and
the Selling Shareholders; and (11) all other costs and
expenses incident to the performance by the Company and the Selling
Shareholders of their obligations hereunder.
(k) The
Company represents, warrants and agrees that, unless it has
obtained or will obtain the prior written consent of the
Representatives, and each Underwriter, severally and not jointly,
represents, warrants and agrees with the Company that, unless it
has obtained or will obtain, as the case may be, the prior written
consent of the Company, it has not made and will not make any offer
relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405) required to
be filed by the Company or such Underwriter with the Commission or
retained by the Company under Rule 433; provided that the
prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in
Schedule II hereto and any electronic road show. Any such free
writing prospectus consented to by the Representatives or the
Company is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and
(y) it has complied and will comply, as the case may be, with
the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record
keeping.
(ii) Each
Selling Shareholder agrees with the several Underwriters
that:
(a) Such Selling Shareholder
will not take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(b) Such Selling Shareholder
will advise you promptly, and if requested by you, will confirm
such advice in writing, so long as delivery of a prospectus
relating to the Securities by an underwriter or dealer may be
required under the Act, of any change in information in the
Registration Statement, the Statutory Prospectus or the Prospectus
relating to such Selling Shareholder.
6.
Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten
Securities and the Option Securities, as the case may be, shall be
subject to the accuracy of the representations and warranties on
the part of the Company and the Selling Shareholders contained
herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy
of the statements of the Company and the Selling Shareholders made
in any certificates pursuant to the provisions hereof, to the
performance by the Company and the Selling Shareholders of their
respective obligations hereunder and to the following additional
conditions:
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