Exhibit 1.1
SOLECTRON CORPORATION
9.625% SENIOR NOTES DUE 2009
UNDERWRITING AGREEMENT
February 1, 2002
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Scotia Capital (USA) Inc.
BNP Paribas Securities Corp.
As representatives of the several Underwriters
Named in Schedule I hereto (the "Representatives")
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Solectron Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of $500,000,000 principal amount of the Company's 9.625% Senior Notes due
February 15, 2009 (the "Securities").
The Securities will be issued pursuant to a Senior Debt Securities
Indenture, to be dated as of February 6, 2002 (the "Base Indenture"), between
the Company and State Street Bank and Trust Company of California, N.A., as
Trustee (the "Trustee"), as supplemented by the First Supplemental Indenture, to
be dated as of February 6, 2002 (the "First Supplemental Indenture," and,
together with the Base Indenture, the "Indenture"), between the Company and the
Trustee.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters as of the date hereof that:
(a) A registration statement on Form S-3 (File No.
333-64454-01) and amendments thereto filed prior to the date hereof
(collectively, the "Initial Registration Statement") in respect of the
Securities has been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto filed prior to the date hereof,
excluding exhibits to the Initial Registration Statement, but including
all documents incorporated by reference in the prospectus contained
therein as of
the date hereof, each in the form heretofore delivered to you for each
of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no
other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than filings by the
Company under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act,
each in the form heretofore delivered to you); and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) under the Act is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement, any post-effective amendment thereto and the
Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part
of the Initial Registration Statement became effective, but excluding
Form T-1, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "Registration Statement"; the
prospectus relating to the offer and sale of the Securities, in the
form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed under the Exchange
Act after the date of such Preliminary Prospectus or Prospectus, as the
case may be, and on or prior to the date hereof or the Time of
Delivery, as applicable, and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment to the Initial Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant
to Sections 13(a) or 15(d) of the Exchange Act after the effective date
of the Initial Registration Statement that is incorporated by reference
in the Registration Statement and on or prior to the date hereof or the
Time of Delivery, as applicable; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof including any documents
incorporated by reference therein as of the date of such filing);
(b) No order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus has been issued by the
Commission, and each
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Preliminary Prospectus and Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly
for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, on or prior to the date hereof or the Time of Delivery, as
applicable, complied and will comply in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and when read
together with the other information in the Prospectus none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements in the Prospectus, in light of the circumstances
under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein;
(d) The Registration Statement complies, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will on and prior to the date hereof and the Time of
Delivery, as applicable, comply, in all material respects with the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, in any case on and prior to the
date hereof and the Time of Delivery, as applicable, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use
therein;
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (a) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (b) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those arising in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as
one
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enterprise, and (c) except for dividends on the Company's preferred
stock that may be outstanding from time to time, in amounts per share
that are consistent with the applicable charter document or supplement
thereto, respectively, no dividend or distribution of any kind has been
declared, paid or made by the Company on any class of its capital
stock;
(f) The Company and its subsidiaries (i) have good and
marketable title to all real property owned by them and (ii) hold all
personal property owned by them, in each case free and clear of all
adverse claims, liens, encumbrances and defects except such as are
described in the Prospectus or such as would not result, singly or in
the aggregate, in a Material Adverse Effect; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, are held by them under valid, subsisting
and enforceable leases with such exceptions as do not interfere with
the use made and proposed to be made of such property and buildings by
the Company and its subsidiaries, except as would not, singly or in the
aggregate, result in a Material Adverse Effect;
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Agreement and the Indenture. The Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect;
(h) Each subsidiary of the Company has been duly organized and
is validly existing as an entity in good standing under the laws of the
jurisdiction of its organization, has the power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
organization to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect. The Company does not have any
"significant subsidiaries" (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the Act) other than those listed on
Schedule II hereto. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital
stock of each significant subsidiary has been duly authorized and is
validly issued, fully paid and non-assessable and is owned by the
Company (except for directors qualifying shares), directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding
shares of capital stock of any significant subsidiary were issued in
violation of preemptive or other similar rights of any securityholder
of such subsidiary;
(i) The Company has the capitalization set forth in the
Prospectus under the heading "Capitalization," and all of the issued
shares of capital stock of
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the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(j) At the Time of Delivery, the Indenture will have been duly
authorized and executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Trustee, will constitute a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except that enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof may be subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law); the Indenture conforms in all
material respects to the description thereof contained in the
Prospectus;
(k) The Securities have been duly authorized by the Company,
and when authenticated, issued and delivered in the manner provided in
the Indenture and delivered against payment of the purchase price
therefor as provided herein, will constitute valid and binding
obligations of the Company enforceable in accordance with their terms;
the Indenture has been duly authorized and duly qualified under the
Trust Indenture Act; and the Securities will conform in all material
respects to the descriptions thereof in the Prospectus;
(l) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, (i) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except as disclosed in
the Prospectus (in which regard the Company represents and warrants
that the operating leases referred to in the disclosure under the
caption "Risk Factors - Risks Relating to the Notes - We will be
required to obtain waivers, consents or amendments from holders of
certain of our financial instruments or we will be required to pre-pay
those obligations" relate solely to the documents set forth in Annex
III hereto and documents ancillary thereto), and except as a result of
the expiration of the Current Waivers (as such term is defined in Annex
III hereto) or as a result of the fact that as of the date hereof the
Current Waivers contain terms and conditions providing for such
expiration, and except for such conflicts, breaches, violations or
defaults that would not result in a Material Adverse Effect, (ii) nor
will such action result in any violation of (A) the provisions of the
Certificate of Incorporation or the By-laws of the Company, or (B) any
applicable statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties, except for such
violations that would not result in a Material Adverse Effect; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities, or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except for
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those consents, approvals, authorizations, orders, registrations or
qualifications which have already been obtained;
(m) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar governing documents or
(ii) in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, except, in the case of this clause (ii), as disclosed in the
Prospectus on the date hereof, and except as a result of the expiration
of the Current Waivers or as a result of the fact that as of the date
hereof the Current Waivers contain terms and conditions providing for
such expiration, and except for such defaults as would not result in a
Material Adverse Effect;
(n) The statements set forth in the Prospectus under the
caption "Description of the Notes" insofar as they purport to
constitute a summary of the terms of the Securities, and the statements
set forth in the Prospectus under the captions "Underwriting" (other
than statements made under such caption in reliance upon and in
conformity with written information furnished to the Company by the
Representatives expressly for use therein) and "Description of Other
Indebtedness", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair in all material respects;
(o) Although the discussion set forth in the Prospectus under
the heading "Certain United States Federal Income Tax Consequences"
does not purport to discuss all possible United States federal income
tax consequences of the purchase, ownership and disposition of the
Securities, such discussion constitutes, in all material respects, a
fair and accurate summary of the United States federal income tax
consequences of the purchase, ownership and disposition of the
Securities, based upon current United States federal income tax law;
(p) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending, or to the knowledge of the
Company, threatened, to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect;
(q) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(r) KPMG, LLC, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder;
(s) The financial statements of the Company (excluding for
purposes of this clause (s), any pro forma financial information)
included in the Registration
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Statement and the Prospectus, together with the related schedules and
notes, as well as those financial statements, schedules and notes of
any other entity included therein (or incorporated by reference),
present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries,
or such other entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved except to the extent
that the interim audited financial statements are subject to normal
year-end adjustments, lack of footnotes and other presentation items.
The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus;
(t) The pro forma condensed consolidated balance sheet and
condensed consolidated statements of operations, the related notes
thereto and the related pro forma supplementary information set forth
(or incorporated by reference) in the Registration Statement and the
Prospectus have been prepared in all material respects in accordance
with the applicable requirements of Rule 11-02 of Regulation S-X
promulgated under the Exchange Act, have been compiled on the pro forma
basis described therein and, in the opinion of the Company, the
assumptions used in the preparation thereof were reasonable at the time
made and the adjustments used therein are based upon good faith
estimates and assumptions believed by the Company to be reasonable at
the time made;
(u) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and other than as
described in the Prospectus, neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would result in a Material Adverse Effect;
(w) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental
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Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them except as would not, singly or in the aggregate, have
a Material Adverse Effect. The Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect;
(x) Except as otherwise stated in the Registration Statement
and the Prospectus or as would not, singly or in the aggregate, result
in a Material Adverse Effect, (a) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (b) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(c) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (d) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of 97.369% of the principal amount thereof, plus accrued
interest, if any, from February 6, 2002 to the Time of Delivery hereunder, the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus.
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4. (a) The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global
Securities in book-entry form which will be deposited by or on behalf
of the Company with The Depository Trust Company ("DTC") or its
designated custodian. The Company will deliver the Securities to
▇▇▇▇▇▇▇, Sachs & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account
specified by the Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at least forty-eight
hours in advance, by causing DTC to credit the Securities to the
account of ▇▇▇▇▇▇▇, Sachs & Co. at DTC. The Company will upon request
cause the certificates representing the Securities to be made available
to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for checking at least twenty-four hours prior
to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be 9:30 a.m., New York City time, on
February 6, 2002 or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co.
and the Company may agree upon in writing. Such time and date for
delivery of the Securities is herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross-receipt for the Securities and any additional
documents requested by the Underwriters pursuant to Section 7 hereof,
will be delivered at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the
"Closing Location"). A meeting will be held at the Closing Location at
5:00 p.m., Palo Alto time, on the New York Business Day next preceding
the Time of Delivery, or such earlier time as the parties shall agree
upon, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Section 4, "New
York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive order to
close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the date hereto or, if applicable, such earlier time as may
be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to the
Time of Delivery for the Securities which shall be reasonably
disapproved by you for such Securities promptly after reasonable notice
thereof; to advise you promptly of any such amendment or supplement
after the Time of Delivery and furnish you with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of the Securities, and during such same period to
advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has
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been filed with the Commission, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 10:00 a.m. New York City time on the second
business day following the date of this Agreement and from time to
time, to furnish the Underwriters with written and electronic copies of
the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify you and upon your
request to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Securities at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter
as many written and electronic copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c)), an earnings statement of the Company and its subsidiaries
(which need not be audited)
10
complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company,
Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Securities, including but not limited
to any securities that are convertible into or exchangeable for, or
that represent the right to receive, the Securities, or any such
substantially similar securities, without the prior written consent of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. The foregoing sentence shall not apply to (i) the
Securities to be sold hereunder, or (ii) any debt issued or incurred
pursuant to any "Credit Agreements," as such term is defined in the
Prospectus under the caption "Description of the Notes - Certain
Definitions";
(f) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to the
holders of Securities consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of two years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders
generally, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which the
Securities or any class of securities of the Company is listed
(excluding any report or financial statement which is available
publicly through the Commission's Electronic Data Gathering and
Retrieval system); and (ii) for such time as you may continue to hold
an unsold allotment of Securities, such additional information
concerning the business and financial condition of the Company as you
may from time to time reasonably request (such financial statements to
be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
(i) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act;
11
(j) Reference is made to the caption in the Prospectus
entitled "Risks Relating to the Notes - As a result of this
transaction, we will be required to obtain waivers, consents or
amendments with respect to our compliance with certain of our financial
instruments or we will be required to pre-pay those obligations" (the
"Conflict Risk Factor") and to the Current Waivers. Prior to the
expiration of each such Current Waiver, as applicable, the Company will
either obtain any further waivers, consents, amendments or other
accommodations contemplated by the Conflict Risk Factor, or pre-pay the
obligations referred to therein, or any combination of the foregoing,
except to the extent that the Company's failure to do so would not
cause a Material Adverse Effect.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Indenture, the Blue Sky
and Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees charged
by securities rating services for rating the Securities; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities; and (viii) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have
12
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, shall have furnished to you a written opinion or opinions
reasonably acceptable to you;
(c) Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the
Company, shall have furnished to you their written opinion, dated the
Time of Delivery, in form and substance satisfactory to you, to the
effect set forth in Annex II hereto;
(d) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
the Time of Delivery, KPMG LLC shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I
hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
the Time of Delivery is attached as Annex l(b) hereto);
(e) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus a material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, or any material change in the capital
stock or long-term or short-term debt of the Company and its
subsidiaries considered as one enterprise, otherwise than as set forth
or contemplated in the Prospectus, the effect of which is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being issued at the Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) except as disclosed in the Prospectus, no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared
13
by either Federal or California State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the occurrence of
any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of
any such event specified in clause (iv) or (v) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities being issued at
the Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(h) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the second business day following the date of this Agreement;
(i) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of the Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to the Time of Delivery, as to the matters
set forth in subsections (a), (e) and (f) of this Section 7 and as to
such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment or supplement
thereto, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (ii) an
untrue statement or alleged untrue statement of a material fact
contained in a Preliminary Prospectus or a Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon any omission
or alleged omission to state therein a material fact necessary in order
to make the statements, in the light of the circumstances under which
they were made, not misleading; and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as
14
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment or supplement thereto, or
arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) an
untrue statement or alleged untrue statement of a material fact
contained in a Preliminary Prospectus or a Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon any omission
or alleged omission to state therein a material fact necessary in order
to make the statements, in the light of the circumstances under which
they were made, 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 Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b)
15
above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) 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 from the offering of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection
(c) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault 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 relates to information
supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective
16
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in
your discretion arrange for you or another party or other parties to
purchase such Securities on the terms contained herein at the Time of
Delivery. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Securities,
or the Company notifies you that it has so arranged for the purchase of
such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section 9
with like effect as if such person had originally been a party to this
Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters
by you and the Company as provided in subsection (a) above of this
Section 9, the aggregate principal amount of such Securities which
remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Securities to be purchased at the Time of
Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Securities which such Underwriter agreed to purchase hereunder at the
Time of Delivery and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal
amount of Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters
by you and the Company as provided in subsection (a) above of this
Section 9, the aggregate principal amount of Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of
all the Securities to be purchased at the Time of Delivery, or if the
Company shall not exercise the right described in subsection (b) above
of this Section 9 to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
17
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives, in care of ▇▇▇▇▇▇▇, Sachs
& Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Registration Department; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
18
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Underwriters imposing any limitation of any kind.
19
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and one for each of the Representatives
plus one for each counsel counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Solectron Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
20
Accepted and Agreed to as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Scotia Capital (USA) Inc.
BNP Paribas Securities Corp.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
---------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
21
SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co...................... $310,000,000
Banc of America Securities LLC........... $ 50,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. ............. $ 50,000,000
Scotia Capital (USA) Inc. ............... $ 50,000,000
BNP Paribas Securities Corp. ............ $ 40,000,000
Total..... $500,000,000
===========
22
SCHEDULE II
SIGNIFICANT SUBSIDIARIES
Solectron California Corporation
Solectron Washington, Inc.
Solectron Texas, Inc.
Solectron Texas, L.P.
Solectron Georgia Corporation
Solectron Global Services, Inc.
Solectron Oregon Corporation
Force Computers, Inc.
Smart Modular Technology, Inc.
US Robotics Corporation
Solectron France SASU
Solectron Sweden AB
Solectron Romania SRL
Solectron Technology SDN BHD
Solectron Suzhou Ltd
Solectron Brasil Ltda
Solectron Australia Pty, Limited
PT Natsteel Electronics Indonesia
Solectron Technology Malaysia SDN BHD
Solectron Technology Singapore Pte Ltd
23