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EXHIBIT 1.1
PURCHASE AGREEMENT
between
SOLECTRON CORPORATION
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
May 2, 2000
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TABLE OF CONTENTS
SECTION 1. Representations and Warranties....................................................3
(a) Representations and Warranties by the Company.....................................3
(1) Compliance with Registration Requirements....................................3
(2) Incorporated Documents.......................................................4
(3) Independent Accountants......................................................4
(4) Financial Statements.........................................................4
(5) No Material Adverse Change in Business.......................................4
(6) Good Standing of the Company.................................................4
(7) Good Standing of Subsidiaries................................................5
(8) Capitalization...............................................................5
(9) Authorization of this Underwriting Agreement.................................5
(10) Authorization of the Securities..............................................5
(11) Description of the Securities and the Indenture..............................6
(12) Authorization and Description of Common Stock................................6
(13) Authorization of the Indenture...............................................6
(14) Absence of Defaults and Conflicts............................................6
(15) Absence of Labor Dispute.....................................................7
(16) Absence of Proceedings.......................................................7
(17) Accuracy of Exhibits.........................................................7
(18) Absence of Further Requirements..............................................7
(19) Possession of Intellectual Property..........................................8
(20) Possession of Licenses and Permits...........................................8
(21) Title to Property............................................................8
(22) Investment Company Act.......................................................8
(23) Environmental Laws...........................................................9
(24) Florida Laws.................................................................9
(b) Officers' Certificates............................................................9
SECTION 2. Sale and Delivery to Underwriters; Closing........................................9
(a) Initial Securities................................................................9
(b) Option Securities.................................................................9
(c) Payment..........................................................................10
(d) Denominations; Registration......................................................10
SECTION 3. Covenants of the Company.........................................................10
(a) Compliance with Securities Regulations and Commission Requests...................10
(b) Filing of Amendments.............................................................11
(c) Delivery of Registration Statements..............................................11
(d) Delivery of Prospectuses.........................................................11
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(e) Continued Compliance with Securities Laws........................................11
(f) Blue Sky Qualifications..........................................................12
(g) Earnings Statement...............................................................12
(h) Reservation of Securities........................................................12
(i) Use of Proceeds..................................................................12
(j) Restriction on Sale of Common Stock..............................................12
(k) Reporting Requirements...........................................................13
SECTION 4. Payment of Expenses..............................................................13
(a) Expenses.........................................................................13
(b) Termination of Agreement.........................................................13
SECTION 5. Conditions of Underwriter's Obligations..........................................14
(a) Effectiveness of Registration Statement..........................................14
(b) Opinion of Counsel for Company...................................................14
(c) Opinion of Counsel for Underwriters..............................................14
(d) Officers' Certificate............................................................14
(e) Accountant's Comfort Letter......................................................15
(f) Bring-down Comfort Letter........................................................15
(g) Ratings..........................................................................15
(h) Lock-up Agreements...............................................................15
(i) No Objection.....................................................................15
(j) Over-Allotment Option............................................................15
(k) Amendment of Agreements..........................................................16
(l) Listing Application..............................................................16
(m) Additional Documents.............................................................16
(n) Termination of Agreement.........................................................16
SECTION 6. Indemnification..................................................................17
(a) Indemnification of Underwriter...................................................17
(b) Indemnification of Company, Directors and Officers...............................18
(c) Actions against Parties; Notification............................................18
(d) Settlement without Consent if Failure to Reimburse...............................19
SECTION 7. Contribution.....................................................................19
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...................20
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SECTION 9. Termination......................................................................20
(a) Termination of Agreement.........................................................20
(b) Liabilities......................................................................20
SECTION 10. Notices..........................................................................21
SECTION 11. Parties..........................................................................21
SECTION 12. Governing Law and Time...........................................................21
SECTION 13. Effect of Headings...............................................................21
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SOLECTRON CORPORATION
(a Delaware corporation)
$3,500,000,000
Liquid Yield Option (TM) Notes due 2020 (Zero Coupon - Senior)
PURCHASE AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Solectron Corporation, a Delaware corporation (the "Company"), confirms
its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (the "Underwriter"), with respect to the issue and sale by the
Company and the purchase by the Underwriter, of $3,500,000,000 aggregate
principal amount of the Company's Liquid Yield Option (TM) Notes due 2020 (Zero
Coupon - Senior) (the "▇▇▇▇▇"), and with respect to the grant by the Company to
the Underwriter of the option described in Section 2(b) hereof to purchase all
or any part of an additional $525,000,000 principal amount of ▇▇▇▇▇ to cover
over-allotments, if any. The aforesaid $3,500,000,000 principal amount of ▇▇▇▇▇
(the "Initial Securities") to be purchased by the Underwriter and all or any
part of the $525,000,000 principal amount of ▇▇▇▇▇ subject to the option
described in Section 2(b) hereof (the "Option Securities") are hereinafter
called, collectively, the "Securities". The Securities are to be issued pursuant
to a senior indenture (the "Senior Indenture") between the Company and State
Street Bank and Trust Company of California, N.A., as trustee (the "Trustee"),
as to be supplemented by a supplemental indenture to be executed at the Closing
Time (as defined below) between the Company and the Trustee (the "Supplemental
Indenture", and the Senior Indenture, as supplemented by the Supplemental
Indenture, the "Indenture").
The Securities are convertible at any time on or prior to maturity,
unless previously redeemed or otherwise purchased, into shares of common stock,
par value $0.001 per share, of the Company (the "Common Stock") in accordance
with the terms of the Securities and the Indenture, at the initial conversion
rate of 12.3309 shares per LYON.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after this
Agreement has been executed
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and delivered and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-34494) and
pre-effective amendment no. 1 thereto, covering the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses. Such registration
statement has been declared effective by the Commission and the Indenture is
duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Promptly after execution and delivery of this Agreement, the Company will
either (i) prepare and file a prospectus in accordance with the provisions of
Rule 430A ("Rule 430A") of the rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations") and/or paragraph (b) of Rule 424 ("Rule
424 (b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement
at the time it became effective (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriter for
use in connection with the offering of the Securities is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated April 14, 2000 together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or
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supplements to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Registration Statement, such preliminary Prospectus, as the
case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriter, as of the date thereof, as of the
Closing Time and as of the Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements.The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration Statement
(including any Rule 462(b) Registration Statement) has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement (or such Rule 462(b) Registration Statement) has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. In addition, the Indenture has been duly qualified under the 1939
Act.
At the respective times the Registration Statement (including any
Rule 462(b) Registration Statement) and any post-effective amendments thereto
became effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act Regulations")
and did not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus, at the Closing
Time and at the Date of Delivery, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a material
fact or omitted or will 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. If the Company elects to rely upon Rule 434 of the 1933
Act Regulations, the Company will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriter expressly for
use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus
and the Prospectus delivered to the Underwriter for use in connection with the
offering of the Securities will, at the time of such delivery, be identical to
any electronically transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
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(2) Incorporated Documents The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at the Date
of Delivery did not and will not include an 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.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
included in the Registration 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, 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.
(5) No Material Adverse Change in Business. 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 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.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware
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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. 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.
(7) Good Standing of Subsidiaries. Each Subsidiary of the Company
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has corporate
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
corporation 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 ▇▇▇▇ ▇▇▇) other
than Solectron Texas, Inc., Solectron California Corporation and SMART Modular
Technologies, Inc. Except as otherwise stated in the Registration Statement and
the Prospectus, all of the issued and outstanding capital stock of each
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 subsidiary was issued in violation of
preemptive or other similar rights of any securityholder of such subsidiary.
(8) Capitalization. The authorized, issued and outstanding shares of
capital stock of the Company is as set forth in the column entitled "Actual"
under the "Capitalization" section of the Prospectus section (except for
subsequent issuances thereof pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the Prospectus
or pursuant to the exercise of convertible securities or options referred to in
the Prospectus). Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and none of
such shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement This Agreement has
been duly authorized, executed and delivered by the Company.
(10) Authorization of the Securities. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the Company
and, when authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as the 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 is subject to general principles of equity
(regardless of whether enforcement
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is considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(11) Description of the Securities and the Indenture. The Securities
and the Indenture will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(12) Authorization and Description of Common Stock. The Common Stock
conforms to all statements relating thereto contained or incorporated by
reference in the Prospectus and such description conforms to the rights set
forth in the instruments defining the same. Upon issuance and delivery of the
Securities in accordance with this Agreement and the Indenture, the Securities
will be convertible at the option of the holder thereof for shares of Common
Stock in accordance with the terms of the Securities and the Indenture; the
shares of Common Stock issuable upon conversion of the Securities have been duly
authorized and reserved for issuance upon such conversion by all necessary
corporate action and such shares, when issued upon such conversion, will be
validly issued and will be fully paid and non-assessable; no holder of such
shares will be subject to personal liability by reason of being such a holder;
and the issuance of such shares upon such conversion will not be subject to the
preemptive or other similar rights of any securityholder of the Company.
(13) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when duly
executed and delivered by the Company and the Trustee, will constitute a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the 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 is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(14) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the assets, properties or operations of the Company
or any of its subsidiaries is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not result in a Material
Adverse Effect. The execution, delivery and performance of this Agreement, and
the Indenture and any other agreement or instrument entered into or issued or to
be entered into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and in
the Registration Statement and the Prospectus (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the Securities as
described under the caption "Use of Proceeds" as well as the issuance of the
shares of Common Stock issuable upon conversion of the Securities) and
compliance by the Company with its obligations hereunder and thereunder have
been duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice
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or passage of time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its subsidiaries pursuant to, any Agreements
and Instruments except for such conflicts, defaults or breaches that would not
result in a Material Adverse Effect, or violate any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations except where such violation would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries. As used herein, a
"Repayment Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
(15) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(16) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the Company
threatened, against or affecting the Company or any of its subsidiaries which is
required to be disclosed in the Registration Statement and the Prospectus, or
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
assets, properties or operations thereof or the consummation of the transactions
contemplated under the Prospectus, this Agreement or the Indenture, or the
performance by the Company of its obligations hereunder and thereunder. The
aggregate of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(17) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(18) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or foreign,
is necessary or required for the due authorization, execution and delivery by
the Company of this Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Agreement, or the
Indenture, except such as have been already made, obtained or rendered, as
applicable.
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(19) Possession of Intellectual Property. 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.
(20) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them. 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.
(21) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except (a) as otherwise stated in the
Registration Statement and the Prospectus or (b) for any of the foregoing,
which, either singly or in the aggregate, would not result in a Material Adverse
Effect. All of the leases and subleases material to the business of the Company
and its subsidiaries considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the Prospectus, are in
full force and effect, and neither the Company nor any of its subsidiaries has
received any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its subsidiaries under any
of the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary of the continued possession of the
leased or subleased premises under any such lease or sublease, except for any
such claim, which, either singly or in the aggregate, would not result in a
Material Adverse Effect.
(22) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
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(23) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except 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.
(24) Florida Laws. The Company has complied with, and is and will be
in compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered the Underwriter or to counsel
for the Underwriter in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company to the Underwriter as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriter, and the Underwriter agrees
to purchase from the Company, at the price set forth in Schedule A,
$3,500,000,000 in the aggregate principal amount of Initial Securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriter to purchase up
to an additional $525,000,000 principal amount of Securities at the same price
per share set forth in Schedule A for the Initial Securities, plus accreted
interest, if any, from the Closing Date to the date of Delivery (as defined
below). The option hereby granted will expire thirty (30) days after the date
hereof and may be exercised
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in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriter to the
Company setting forth the number of Option Securities as to which the
Underwriter is then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by the Underwriter, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, unless otherwise agreed upon by the Underwriter
and the Company. If the option is exercised as to all or any portion of the
Option Securities, the Underwriter will purchase that number of Option
Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place
as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, at 10:00 a.m.
(California time) on the third (fourth, if the pricing occurs after 4:30 p.m.
(Eastern time) on any given day) business day after the date hereof or such
other time not later than ten business days after such date as shall be agreed
upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that the
Underwriter has exercised its option to purchase any or all of the Option
Securities, payment of the purchase price for, and delivery of such Option
Securities, shall be made at the above-mentioned offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇
▇▇▇▇▇ and the Company, on the relevant Date of Delivery as specified in the
notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
▇▇▇▇▇▇▇ ▇▇▇▇▇ for the account of the Underwriter of the Securities to be
purchased by it.
(d) Denominations; Registration. The certificates for the Securities,
shall be in such denominations and registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may
request in writing at least one full business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Underwritten Securities will be made available for examination and packaging by
▇▇▇▇▇▇▇ ▇▇▇▇▇ in the City of New York not later than 10:00 a.m. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with the Underwriter, as follows:
(a) Compliance with Securities Regulations and Commission Request. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, as
applicable, and will notify the Underwriter immediately, and confirm the notice
in writing, of (i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
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or suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424 and will
take such steps as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Underwriter notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act effect or relating to
the Securities, will furnish the Underwriter with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Underwriter or
counsel for the Underwriter shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriter and counsel for the Underwriter, without charge,
one signed copy of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts. The Registration Statement and each amendment thereto furnished to the
Underwriter will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to the
Underwriter, without charge, as many copies of each preliminary prospectus as
the Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to the Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as the Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriter will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriter or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
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misleading or to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriter, without charge, such number of copies of such amendment or
supplement as the Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities and the shares of
Common Stock issuable upon conversion of Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Underwriter may designate and to maintain such qualifications
in effect for a period of not less than one year from the date hereof; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities or the
shares of Common Stock issuable upon conversion of Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the date hereof.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Reservation of Securities. The Company will reserve and keep
available at all times, free of preemptive or other similar rights, a sufficient
number of shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue the shares of Common Stock issuable upon
conversion of Securities.
(i) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(j) Restriction on Sale of Common Stock During a period of 90 days from
the Closing Time, the Company will not, without the prior written consent of the
Underwriter, (i) directly or indirectly, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic
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consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder and the
Company's ▇▇▇▇▇ due 2019, (B) any shares of Common Stock issued by the Company
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectus, (C) any shares
of Common Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company referred to in the Prospectus,
(D) any shares of Common Stock issued pursuant to any non-employee director
stock plan or dividend reinvestment plan and (E) any shares of Common Stock
issued pursuant to any acquisition consummated pursuant to an agreement executed
by the Company prior to the Closing Time.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriter of this
Agreement, the Agreement among Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities or the issuance or delivery of the Common
Stock issuable upon conversion thereof, (iii) the preparation, issuance and
delivery of the Securities and the issuance or delivery of the Common Stock
issuable upon conversion thereof, any certificates for the Securities or such
Common Stock issuable upon conversion thereof, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Securities and Common Stock issuable upon
conversion thereof under state securities laws in accordance with the provisions
of Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and delivery to the Underwriter of
copies of each preliminary prospectus, any Term Sheet, and the Prospectus and
any amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(viii) the fees and expenses incurred with respect to the listing of the Common
Stock issuable upon conversion of the Securities, and (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(b)(i)
hereof, the Company shall
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reimburse the Underwriter for all of its accountable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriter.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS
The obligations of the Underwriter to purchase and pay for the
Securities pursuant to this Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriter. A prospectus containing information relating to the
description of the Securities and the Common Stock, the specific method of
distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (b)(2), (b)(3), (b)(4) or (b)(5), as applicable
(or any required post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements of Rule
430A), or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, counsel for the Company, in
form and substance reasonably satisfactory to counsel for the Underwriter, to
the effect set forth in Exhibit B hereto and to such further effect as counsel
to the Underwriter shall reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriter. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Underwriter. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any Material Adverse Effect, and the Underwriter shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial officer or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such Material
Adverse Effect, (ii) the representations and warranties in Section 1(a) are true
and correct with
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the same force and effect as though expressly made at and as of the Closing
Time, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted, are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriter shall have received from KPMG LLP a letter dated such
date, in form and substance satisfactory to the Underwriter, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Underwriter shall
have received from KPMG LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
Section 5(e), except that the specified date referred to shall be a date not
more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time, the Securities shall be rated at least
Baa3 by ▇▇▇▇▇'▇ Investor's Service Inc. and BBB by Standard & Poor's and the
Company shall have delivered to the Underwriter a letter dated the Closing Time,
from each such rating agency, or other evidence satisfactory to the Underwriter,
confirming that the Securities have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Company's other debt securities by any "nationally
recognized statistical rating agency", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's other debt securities.
(h) Lock-up Agreements. On the date hereof, the Underwriter shall have
received a lock-up agreement substantially in the form attached hereto as
Exhibit A signed by the persons listed on Schedule B hereto.
(i) No Objection. If the Registration Statement or an offering of the
Securities is required to be filed with the NASD for review, the NASD shall not
have raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Over-Allotment Option. In the event that the Underwriter exercises
its option to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of the Date of Delivery,
and, at the relevant Date of Delivery, the Underwriter shall have received:
(1) A certificate, dated such Date of Delivery, of the President or
a Vice President of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate delivered at
the Closing Time pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
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(2) The favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Professional Corporation, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriter, dated such Date of
Delivery, relating to the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(3) The favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities and
otherwise to the same effect as the opinion required by Section 5(c) hereof.
(4) A letter from KPMG LLP, in form and substance satisfactory to
the Underwriter and dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the Underwriter pursuant to Section
5(f) hereof, except that the "specified date" on the letter furnished pursuant
to this paragraph shall be a date not more than three business days prior to
such Date of Delivery.
(5) Since the time of execution of this Agreement, there shall not
have occurred a downgrading in, or withdrawal of, the rating assigned to the
Securities or any of the Company's other securities by any such rating
organization, and no such rating organization shall have publicly announced that
it has under surveillance or review its rating of the Securities or any of the
Company's other securities.
(k) Amendment of Agreements. Prior to Closing Time, each of the
agreements listed on Schedule C shall have been amended to permit the offering
of the Securities without resulting in a default thereunder and at Closing Time
shall be in form and substance satisfactory to the Underwriter and counsel for
the Underwriter.
(l) Listing Application. Prior to Closing Time, the Company shall have
filed an application with the New York Stock Exchange to list the Securities
thereon.
(m) Additional Documents. At Closing Time and at the Date of Delivery,
counsel for the Underwriter shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
(n) Termination of Agreement. If any condition specified in this Section
5 shall not have been fulfilled when and as required to be fulfilled, this
Agreement (or, with respect to the Underwriter's exercise of any over-allotment
option for the purchase of Option Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriter to purchase the Option
Securities on such Date of Delivery) may be terminated by the Underwriter by
notice to the Company at any time at or prior to the Closing Time (or such Date
of Delivery, as applicable), and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
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SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriter. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriter), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above; provided, however, that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Underwriter expressly
for use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part thereof,
if applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
The foregoing indemnity with respect to any untrue statement contained
in or omission from a preliminary prospectus shall not inure to the benefit of
the Underwriter (or any person controlling the Underwriter) from whom the person
asserting any such loss, liability, claim, damage or expense purchased any of
the Securities which are the subject thereof, if the Company shall sustain the
burden of proving that such person was not sent or given a copy of the
Prospectus at or prior to the written confirmation of the sale of such
Securities to such person and the untrue statement contained in or omission from
such preliminary prospectus was corrected in the Prospectus.
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(b) Indemnification of Company, Directors and Officers. The Underwriter
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriter, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than forty-five (45) days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least thirty (30) days prior to such
settlement being
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entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriter, on the other hand, from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and the Underwriter, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriter, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriter, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet bear to the aggregate initial public offering price of such
Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriter,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not 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
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any damages which the Underwriter has otherwise been required to pay by reason
of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of and payment for the Securities.
SECTION 9. TERMINATION
(a) Termination of Agreement. The Underwriter may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any Material Adverse Effect, or (ii)
there has occurred any material adverse change in the financial markets in the
United States, or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) trading in any securities of the Company
has been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
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25
SECTION 10. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriter shall be directed to
▇▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; and notices to the Company shall be directed to it
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇, Senior
Vice President and Chief Financial Officer.
SECTION 11. PARTIES
This Agreement shall inure to the benefit of and be binding upon the
Company and Underwriter and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriter and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from the Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME
THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. EFFECT OF HEADINGS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
[Signature Page Follows]
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms and as of
the date first set forth above.
Very truly yours,
SOLECTRON CORPORATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
CONFIRMED AND ACCEPTED,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
By:_____________________________________
Name:___________________________________
Title:__________________________________
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27
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by Solectron Corporation
Dear Sirs:
The undersigned, a stockholder and an officer of Solectron Corporation,
a Delaware corporation (the "Company"), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") proposes to
enter into a Purchase Agreement (the "Purchase Agreement") with the Company
providing for the public offering of $3,500,000,000 aggregate principal amount
of the Company's Liquid Yield Option (TM) Notes due 2020 (Zero Coupon - Senior)
(the "Securities"). In recognition of the benefit that such an offering will
confer upon the undersigned as a stockholder and an officer of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with ▇▇▇▇▇▇▇ ▇▇▇▇▇ that, during
a period of 45 days from the date of the Purchase Agreement, the undersigned
will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares
of the Company's Common Stock, par value $0.001 per share (the "Common Stock"),
or any securities convertible into or exchangeable or exercisable for Common
Stock, whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of 1933
as amended, with respect to any of the foregoing or (ii) enter into any swap or
any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of Common Stock or
any securities convertible into or exchangeable for Common Stock, whether any
such swap or transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
Very truly yours,
Signature:___________________________________
Print Name:__________________________________
A-1
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EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
(ii) The Company 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 by, the Purchase Agreement.
(iii) The Company is in good standing as a foreign corporation duly
qualified to transact business in California and Georgia.
(iv) The Company has the authorized capitalization as set forth in the
Prospectus under the caption "Capitalization."
(v) Each of Solectron Texas, Inc., Solectron California Corporation and
SMART Modular Technologies, Inc. ("U.S. Significant Subsidiaries") is duly
incorporated and is an existing corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is in good standing as a foreign corporation duly qualified to
transact business in each jurisdiction in which such qualification is required,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect. All of the issued and outstanding capital
stock of each U.S. Significant Subsidiary has been duly authorized and is
validly issued, fully paid and non-assessable and, to our knowledge, is owned by
the Company, directly or through subsidiaries, free of any adverse claim. None
of the outstanding shares of capital stock of any U.S. Significant Subsidiary
was issued in violation of any statutory preemptive or similar rights of any
security holder of such U.S. Significant Subsidiary under such corporation's
charter, by-law or any Reviewed Agreement.
(vi) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules and other financial
information derived from accounting records, included therein or omitted
therefrom, as to which we need express no opinion), when they were filed with
the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of Commission
thereunder.
(viii) To our knowledge, except as disclosed in the Prospectus, there is
not pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any of
B-1
29
its subsidiaries is a party, or to which the assets, properties or operations of
the Company or any subsidiary is subject, before or brought by any court or
governmental agency or body which such counsel believes will have a Material
Adverse Effect or materially or adversely affect the Company's ability to
consummate transactions contemplated by the Purchase Agreement or the
performance by the Company of its obligations thereunder.
(ix) The information in the Prospectus under the captions "Description
of ▇▇▇▇▇", "Description of Capital Stock" and in the Registration Statement
under Item 15, insofar as it purports to summarize the documents or laws
referred to therein, fairly summarize in all material respects the matter
referred to therein.
(x) We confirm our opinion as set forth in the fifth full paragraph
under the caption "Federal Income Tax Considerations" in the Prospectus. The
information in the Prospectus under the caption "Federal Income Tax
Considerations," while not purporting to discuss all tax matters relating to the
Securities, based upon the Securities being treated as indebtedness, sets forth
the material federal income tax consequences of the Securities, subject to the
qualifications set forth therein.
(xi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any U.S. federal or California,
or under the General Corporation Law of Delaware, Delaware court or governmental
authority or agency is necessary or required by the Company in connection with
the due authorization, execution or delivery by the Company of the Purchase
Agreement or the Indenture or for the performance by the Company of the
transactions contemplated under the Prospectus or the Indenture, other than
under the 1933 Act and the 1939 Act, which has already been made, obtained or
rendered, as applicable, and other than as may be required under state or
non-U.S. securities laws as to which no opinion need be rendered.
(xii) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. The required filings
of the Prospectus pursuant to Rule 424(b) have been made in the manner and
within the time periods required by Rule 424(b). To our knowledge, no stop order
suspending the effectiveness of the Registration Statement (or such Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or threatened by the
Commission.
(xiii) The Registration Statement (including any Rule 462(b)
Registration Statement) and the Prospectus, excluding the documents incorporated
by reference therein, and each amendment or supplement to the Registration
Statement and Prospectus, excluding the documents incorporated by reference
therein, as of their respective effective or issue dates (other than the
financial statements and supporting schedules and other financial information
derived from accounting records, included therein or omitted therefrom, and the
Trustee's Statement of Eligibility on Form T-1, as to which we need express no
opinion) complied as to form in all
B-2
30
material respects with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder.
(xiv) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(xv) To our knowledge, the execution, delivery and performance by the
Company of its obligations under the Purchase Agreement, the Indenture and the
Securities and the consummation by the Company of the transactions contemplated
by the Purchase Agreement (including the issuance of the shares of Common Stock
issuable upon conversion of the Securities) do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xiv) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any Reviewed Agreement (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company, or any applicable U.S.
federal or California law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any U.S. federal or California government, government
instrumentality or court having jurisdiction over the Company or any of their
respective properties, assets or operations. For purposes of this opinion,
"Reviewed Agreements" are agreements that would be required to be filed as an
exhibit to the Company's Annual Report on Form 10-K if such Annual Report was
being filed for the first time as of the date of such counsel's opinion, as
certified by the Company.
(xvi) Each of the Senior Indenture and the Supplemental Indenture
(collectively, the "Indenture") has been duly authorized, executed and delivered
by the Company and, assuming the due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
(xvii) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, assuming that the Securities have
been duly authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel need not determine
by an inspection of the Securities), the Securities have been duly executed,
issued and delivered by the Company and constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
and will be entitled to benefits of the Indenture.
(xviii)The shares of Common Stock issuable upon conversion of the
Securities have been duly authorized and reserved for issuance upon such
conversion by all necessary corporate action; such shares, when issued upon such
conversion, will be validly issued and will be fully paid and non-assessable,
and no holder of such Common Stock is or will be subject to personal liability
solely by reason of being such a holder.
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31
(xix) The issuance of the shares of Common Stock upon conversion of the
Securities is not subject to any statutory preemptive or other similar rights of
any security holder of the Company under the Company's charter, by-laws or any
Reviewed Agreement.
(xx) The Senior Indenture has been duly qualified under the ▇▇▇▇ ▇▇▇.
(xxi) The form of certificate to be used to evidence the Common Stock
issuable upon conversion of the Securities complies in all material respects
with all applicable statutory requirements, with any applicable requirements of
the charter and by-laws of the Company and the requirements of the New York
Stock Exchange.
(xxii) To our knowledge, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be filed or
incorporated by reference as exhibits to the Registration Statement other than
those filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material respects.
Such counsel shall also have furnished to you a written statement
(included in such written opinion or in a separate letter) to the effect that,
although such counsel has not verified, and is not passing upon and does not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior to the
Closing Time, except as set forth in paragraphs (ix) and (x) above, such counsel
has acted as counsel to the Company in connection with the preparation of the
Registration Statement and Prospectus and any such further amendments or
supplements and such counsel has reviewed and discussed the contents of the
Registration Statement and the Prospectus and any such further amendments and
supplements with representatives of the Company, its auditors, you and your
counsel, and on the basis of the information that such counsel gained in the
course of this review and discussion, but without independent check or
verification, no facts have come to such counsel's attention that caused it to
believe (i) that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such Closing Time
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 therein
not misleading or that, as of its date or such Closing Time, the Prospectus or
any further amendment or supplement thereto made by the Company prior to such
Closing Time contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) that any
amendment to the Registration Statement was required to be filed. Such counsel
need not express any opinion to make any statement as to the financial
statements and related schedules or other financial data derived from accounting
records included in or omitted from the Registration Statement or the Prospectus
or any amendment or supplement thereto or with respect to the Statement of
Eligibility and Qualification of the Trustee under the 1939 Act filed as an
exhibit to the Registration Statement.
B-4
32
Such counsel's opinions with respect to any documents being valid,
binding or enforceable according to its terms may be qualified as to:
(i) limitations imposed by bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium or other similar
laws relating to or affecting the rights and remedies of
creditors generally;
(ii) rights to indemnification and contribution which may be limited
by applicable law or equitable principles; and
(iii) general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance
or injunctive relief, and limitations or rights of acceleration,
regardless of whether such validity and binding effect are
considered in a proceeding in equity or at law.
Moreover, such counsel need express no opinion as to the validity, binding
effect or enforceability of any provisions of the Indenture purporting to impose
penalties or any increase in interest rate to the extent they constitute a
penalty or are otherwise contrary to public policy.
In rendering such opinion, such counsel may rely as to matters of fact
on documents, certificates, corporate records, opinions and instruments as such
counsel has deemed necessary or appropriate for purposes of this opinion. In
addition, such counsel may state their opinion is limited to matters governed by
the laws of the State of California, the General Corporation Law of the State of
Delaware and the Federal law of the United States, and, as to the valid and
binding nature of the Indenture and the Securities and the enforceability
thereof as set forth in paragraphs (xvi) and (xvii), the laws of the State of
New York.
With respect to matters other than the laws of the State of California,
the General Corporation Law of the State of Delaware and the Federal law of the
U.S., and, as set forth in the preceding paragraph, the laws of the State of New
York, such counsel may omit such opinions, provided that such opinions are
provided by other counsel reasonably acceptable to the Underwriter.
B-5
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SCHEDULE A
PURCHASE PRICE
$2,026,920,000.00
34
SCHEDULE B
PARTIES TO LOCK-UP AGREEMENT
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
35
SCHEDULE C
AGREEMENTS TO BE AMENDED
1. Credit Agreement, dated as of April 30, 1997, among the Company and the banks
party thereto, as amended.
2. Amended and Restated Lease Agreement, dated as of July 1, 1998, among the
Company, Solectron Washington, Inc. and BNP Leasing Corporation ("BNP") and
Amended and Restated Guaranty, dated as of July 1, 1998, by the Company in favor
of BNP, in each case as amended.
3. Lease Agreement, dated as of October 20, 1998, among the Company, Solectron
Georgia Corporation and BNP, as amended.
4. Participation Agreement, dated as of June 4, 1999, among the Company,
Solectron South Carolina Corporation, Solectron California Corporation, SMART
Modular Technologies, Inc., First Security Bank, National Association, as
trustee, the lenders party thereto from time to time, and First Security Bank,
National Association, as agent for such lenders, and certain agreements among
such parties related thereto, in each case as amended.
5. Amended and Restated Lease Agreement, dated as of July 16, 1998, between BNP
and Force Computers, Inc. and Amended and Restated Guaranty, dated as of July
16, 1998, by the Company in favor of BNP, in each case as amended.
6. Lease Agreement, dated as of September 6, 1994, between BP and the Company,
as amended.