Exhibit 1.1.2
EXECUTION VERSION
CELESTICA INC.
US$250,000,000
7-5/8 % Senior Subordinated Notes due 2013
Underwriting Agreement
New York, New York
June 16, 2005
Banc of America Securities LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
CIBC World Markets Corp.
RBC Capital Markets Corporation
Scotia Capital Inc.
Wachovia Capital Markets, LLC
McDonald Investments Inc.
As Representatives of the several Underwriters,
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Celestica Inc., a corporation organized under the laws of Ontario (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom the Representatives (the
"Representatives") are acting as representatives, US$250,000,000 aggregate
principal amount of its 7-5/8% Senior Subordinated Notes due 2013 (the
"Securities"). The Securities are to be issued under the Third Supplemental
Indenture (the "Supplemental Indenture"), to be dated as of the Closing Date (as
hereinafter defined), between the Company and JPMorgan Chase Bank, as trustee
(the "Trustee") to the Indenture, dated as of June 16, 2004, between the Company
and JPMorgan Chase Bank, as trustee (the "Base Indenture," and together with the
Supplemental Indenture, the "Indenture"). To the extent there are no additional
Underwriters listed on Schedule I other than the Representatives, the term
Representatives as used herein shall mean the Representatives, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. The use of the neuter in this Agreement shall
include the feminine and masculine wherever appropriate. Certain terms used
herein are defined in Section 17
hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form F-3 (Registration No. 333-69278)
(the "First Registration Statement"), a registration statement on Form F-3
(Registration No. 333-12272) (the "Second Registration Statement") and a
registration statement on Form F-3 (Registration No. 333-50240) (the "Third
Registration Statement") under the Securities Act of 1933, as amended (together
with the rules and regulations of the Commission promulgated thereunder, the
"Securities Act"), covering the registration of the Securities under the
Securities Act, and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Securities pursuant to Rule 430A and Rule 424(b) under the Securities Act. The
term "Registration Statement" shall mean collectively, the First Registration
Statement, the Second Registration Statement and the Third Registration
Statement, including exhibits and financial statements, as amended at the
Execution Time, and, in the event any post-effective amendment thereto or any
registration statement filed pursuant to Rule 462(b) under the Securities Act
becomes effective prior to the Closing Date, shall also mean such registration
statement as so amended or such registration statement, as the case may be. The
information that was included in the Prospectus Supplement that was omitted from
the 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 pursuant
to paragraph (b) of Rule 430A is referred to as the "Rule 430A Information". The
term "Base Prospectus" means the prospectus as included in the Registration
Statement as modified in a filing pursuant to Rule 430A and Rule 424(b) under
the Securities Act. The term "Prospectus" means the Base Prospectus together
with the Prospectus Supplement. As used herein, the terms "Base Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Base Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (together with the rules and regulations of the Commission promulgated
thereunder, the "Exchange Act"). For purposes of this Agreement, all references
to the Registration Statement, the Prospectus 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.
The Company has caused the Trustee to prepare and file with the Commission
a Statement of Eligibility under the Trustee Indenture Act of 1939, as amended
(the "1939 Act") on Form T-1 (the "Form T-1").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each of the Underwriters that:
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(a) The Company meets the requirements for use of Form F-3 under the
Securities Act. The Registration Statement has become effective and the
Indenture has been qualified under the 1939 Act; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied, or will
comply when so filed, in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, at all times
subsequent thereto up to and including the Closing Date will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, at all times subsequent thereto up to and including
the Closing Date will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(b) do not apply to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Underwriters through the
Representatives specifically for inclusion therein.
(c) The consolidated financial statements of the Company incorporated
by reference or included in the Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of operation and the consolidated changes in
financial position of the Company and its subsidiaries for the periods
specified; and such consolidated financial statements have been prepared in
conformity with generally accepted accounting principles in Canada, consistently
applied throughout the periods involved, and the audited consolidated financial
statements have been reconciled to generally accepted accounting principles in
the United States in accordance with applicable U.S. securities laws and comply
as to form with the applicable accounting requirements of Regulation S-X. The
summary and selected financial data included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial information included in the
Prospectus.
(d) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
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(e) During the six-month period prior to the date hereof, the Company
has not paid or agreed to pay to any person any compensation for soliciting
another to purchase any securities of the Company (except as contemplated in
this Agreement).
(f) The Company has been duly incorporated, is validly existing under
the Business Corporations Act (Ontario), has the corporate power and authority
to own its property and to conduct its business as described in the Prospectus
and is duly registered or qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such registration or qualification, except to the
extent that the failure to be so registered or qualified or be in good standing
would not have a material adverse effect on condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect").
(g) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly registered or qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such registration or qualification, except to the
extent that the failure to be so registered or qualified or be in good standing
would not have a Material Adverse Effect; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company (except for directors' qualifying shares), and, to the
Company's knowledge, free and clear of all liens, encumbrances, equities or
claims.
(h) The Indenture has been duly authorized by the Company and duly
qualified under the 1939 Act and, when the Supplemental Indenture has been
executed and delivered by the Company and the Trustee, the Indenture 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).
(i) The Securities have been duly authorized by the Company and, at
the Closing Date (or any applicable Closing Date), 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
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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), and will be in the form contemplated by, and
entitled to the benefits of, the Indenture.
(j) The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus.
(k) The execution and delivery by the Company of this Agreement, the
Supplemental Indenture and the Securities, and the performance by the Company of
its obligations under this Agreement, the Indenture and the Securities and the
consummation of the transactions contemplated herein and in 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") and compliance by the Company with its obligations hereunder and
under the Indenture will not contravene or result in the imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to (i) any provision of applicable law or the articles of
incorporation or bylaws of the Company; (ii) any agreement or instrument binding
upon the Company or any of its subsidiaries; or (iii) any statute, regulation,
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, except, with respect to clause
(ii), as would not have a Material Adverse Effect, and no consent, filing,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement and the Indenture except the filing of the Prospectus with
the Commission pursuant to Rule 430A and Rule 424(b) and such as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Securities and except for the qualification of the
Indenture under the 1939 Act.
(l) This Agreement has been duly authorized, executed and delivered by
the Company.
(m) Subsequent to the date of the Prospectus Supplement, there has not
occurred any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any supplement
thereto subsequent to the date of this Agreement).
(n) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
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(o) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(p) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state, provincial, and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"); (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a Material Adverse Effect.
(q) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for cleanup, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(r) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such securities
with the Securities registered pursuant to the Registration Statement.
(s) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary course
of business; (ii) the Company has not purchased any of its outstanding capital
stock (other than ordinary purchases in connection with its employee equity
based compensation plan), nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock except pursuant to its normal
course issuer bid other than ordinary and customary dividends; and (iii) there
has not been any material change in the capital stock, short-term debt or
long-term debt of the Company and its subsidiaries, except in each case as
described in the Prospectus.
(t) The Company and its subsidiaries have good and marketable title in
fee simple to all real property owned by them and good and marketable title to
all personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or such
as would not have a Material Adverse Effect; and any real property and buildings
held under lease by the
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Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases, in each case except as described in the Prospectus or such
as would not have a Material Adverse Effect.
(u) (i) Neither the Company nor any subsidiary listed on Schedule II
hereto is in violation or default of any provision of its articles of
incorporation or bylaws, and (ii) (A) neither the Company nor any subsidiary is
in violation or default of the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound or
to which its property is subject, or (B) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Company or such subsidiary or any of its properties, as applicable, except, with
respect to clause (ii) only, where such violation or default would not, singly
or in the aggregate, have a Material Adverse Effect.
(v) KPMG LLP, who has certified certain financial statements of the
Company and its consolidated subsidiaries and delivered its report with respect
to the audited consolidated financial statements and schedules incorporated by
reference in the Prospectus, is an independent registered public accounting firm
with respect to the Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder.
(w) The Company has filed all non-U.S., U.S. federal, state and local
tax returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a Material
Adverse Effect and except as set forth in or contemplated in the Prospectus
(exclusive of any amendment or supplement thereto)) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect and except as set
forth in or contemplated in the Prospectus (exclusive of any amendment or
supplement thereto).
(x) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except pursuant to applicable law or as described in
or contemplated by the Prospectus (exclusive of any supplement thereto).
(y) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material 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 and trade
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names currently employed by them in connection with the business now operated by
them, and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, filing or finding, would have a Material
Adverse Effect.
(z) The minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder ("ERISA"), has been satisfied by each
"pension plan" (as defined in Section 3(2) of ERISA) which has been established
or maintained by the Company and/or one or more of its subsidiaries, and each
such pension plan which is intended to be qualified under Section 401 of the
Code is so qualified in all material respects; each of the Company and its
subsidiaries has fulfilled its obligations, if any, under Section 515 of ERISA;
each pension plan and "welfare plan" (as defined in Section 3(1) of ERISA)
established or maintained by the Company and/or one or more of its subsidiaries
is in compliance in all material respects with the currently applicable
provisions of ERISA; and neither the Company nor any of its subsidiaries has
incurred any liability under (i) Title IV of ERISA with respect to the
termination of or withdrawal from any plan subject thereto, or (ii) Section 412
or 4971 of the Internal Revenue Code of 1986, as amended, which singly or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
(aa) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
of the Securities.
(bb) No material 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, threatened or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could be reasonably expected to have a
Material Adverse Effect.
(cc) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any of its subsidiaries has been refused any
insurance coverage sought or applied for; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect, except as
described in the Prospectus.
(dd) The Company and its subsidiaries possess all licenses,
certificates, authorizations and permits issued by the appropriate federal,
provincial, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the
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Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect,
except as described in the Prospectus.
(ee) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ff) There is and has been no failure on the part of the Company and
any of the Company's directors or officers, in their capacities as such, to
comply with any provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Sarbanes Oxley Act"),
including Section 402 related to loans and Sections 302 and 906 related to
certifications, to the extent applicable to a "foreign private issuer" as
defined in the Exchange Act.
(gg) None of the Company, its subsidiaries or, to the knowledge of
the Company, any director, officer, agent, employee or Affiliate of the Company
or any of its subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such Persons of Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the
"FCPA"), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA; and the Company, its
subsidiaries and, to the knowledge of the Company, its Affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(hh) The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the "Money Laundering Laws"), in each
case except as would not have a Material Adverse Effect; and no action, suit or
proceeding by or before any court or governmental agency, authority or body or
any
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arbitrator involving the Company or any of its subsidiaries with respect to the
Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(ii) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the Securities Activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(jj) The subsidiaries of the Company listed on Schedule II hereto
are the only "significant subsidiaries" (as defined in Rule l-02 of Regulation
S-X under the Act) of the Company.
(kk) The Company shall use the net proceeds of the offering of the
Securities pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds."
Any certificate signed by any officer of the Company or any of its
subsidiaries delivered to the Underwriters or to counsel for the Underwriters
pursuant to the terms hereof shall be deemed a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of 100.0% of the
principal amount thereof, plus accrued interest, if any, from June 23, 2005 to
the Closing Date, the principal amount of Securities set forth opposite such
Underwriter's name in Schedule I hereto. The Company agrees to pay to each
Underwriter a commission equal to 1.5% of the principal amount of Securities set
forth opposite such Underwriter's name in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
shall be made at 10:00 A.M., New York City time, on June 23, 2005, or at such
time on such later date not more than three Business Days after the foregoing
date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 11 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof (from which the underwriting
commission payable by the Company shall have been deducted) to or upon the order
of the Company by wire transfer payable in same-day funds to the account
specified by the Company. Delivery of the Securities shall be made through the
facilities of The
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Depository Trust Company unless the Representatives shall otherwise instruct.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) The Underwriters shall have received at the Closing Date an
opinion of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is existing as
a corporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly registered or qualified to transact business and is in
good standing in each jurisdiction in Canada in which the conduct of
its business or its ownership or leasing of property requires such
registration or qualification, except to the extent that the failure
to be so registered or qualified or be in good standing would not have
a Material Adverse Effect;
(ii) each subsidiary of the Company set forth in a schedule
to such counsel's opinion incorporated in a province or under the
federal laws of Canada (a "Canadian Subsidiary") has been duly
incorporated, is existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as
described in the Prospectus and is duly registered or qualified to
transact business and is in good standing in the Province of Ontario;
(iii) the authorized capital of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(iv) all of the issued shares of capital stock of each
Canadian Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and are registered in the name of
the Company or a subsidiary of the Company;
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(v) this Agreement has been duly authorized, executed and,
to the extent delivery is a matter governed by the laws of the
Province of Ontario, delivered by the Company;
(vi) the Company has all requisite corporate power and
authority to enter into the Supplemental Indenture and to perform its
obligations under the Indenture, and the Supplemental Indenture has
been duly authorized, executed and, to the extent delivery is a matter
governed by the laws of the Province of Ontario, delivered by the
Company;
(vii) the Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Securities, the Securities have been duly authorized, executed and, to
the extent delivery is a matter governed by Ontario law, delivered by
the Company.
(viii) the execution and delivery by the Company of this
Agreement, the Supplemental Indenture and the Securities, the
consummation by the Company of the transactions contemplated in this
Agreement and the Supplemental Indenture, and the performance and
compliance by the Company of and with its obligations under the
Securities, this Agreement and the Indenture will not contravene the
articles of incorporation or bylaws of the Company or any provision of
applicable laws of the Province of Ontario or any federal laws of
Canada applicable therein or such agreements or instruments set forth
in a schedule to such counsel's opinion (including, to the best of
such counsel's knowledge, such agreements and instruments identified
on such schedule as secondary agreements and instruments), or, to the
best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court in Canada having jurisdiction over
the Company or any Canadian Subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency in Canada is required for the performance by the
Company of its obligations under this Agreement except such as have
been obtained and such counsel does not express an opinion as to the
private placement exemptions available for the offer and sale of the
Securities in provinces of Canada;
(ix) the statements in the Prospectus under the caption
"Material Canadian Federal Income Tax Considerations" and "Description
of Certain Indebtedness -- $600.0 Million Revolving Term Credit
Facility" insofar as such statements constitute summaries of the legal
matters or documents referred to therein, fairly summarize the matters
referred to therein in all material respects;
(x) to the best of such counsel's knowledge, there are no
legal or governmental proceedings in Canada pending or threatened to
which
12
the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject
that, if determined adversely, would have a Material Adverse Effect;
(xi) the form and terms of the Securities have been duly
authorized by the Company; and
(xii) such counsel (A) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief)
the Registration Statement and the Prospectus included therein at the
time the Registration Statement became effective contained any 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 and (B) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief)
the Prospectus, as of its date, contained and, as of the Closing Date,
contains any untrue statement of a material fact or omits 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.
In rendering such opinion, such counsel may rely on, as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus
in this Section 5(a) include any amendment or supplement thereto at the
Closing Date.
(b) The Underwriters shall have received at the Closing Date an
opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated the
Closing Date, to the effect that:
(i) each significant subsidiary of the Company incorporated
in the State of Delaware has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in the respective states set forth in a schedule to such
counsel's opinion;
(ii) the execution and delivery by the Company of the
Supplemental Indenture, this Agreement and the Securities, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Securities and the consummation by the Company
of the transactions contemplated herein and in the Indenture, the
Prospectus, and the Registration Statement (including the issuance and
sale of the Securities and the use of proceeds from the sale of the
Securities as
13
described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations under the Securities,
this Agreement and the Indenture will not contravene any provision of
applicable federal law of the United States or the laws of the State
of New York or the General Corporation Law of the State of Delaware
or, to the best of such counsel's knowledge, such agreements or
instruments set forth in a schedule to such counsel's opinion, or, to
the best of such counsel's knowledge, any judgment, order or decree of
any governmental body, agency or court in the United States having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency in the United States is required for the
performance by the Company of its obligations under this Agreement and
the Indenture, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and
sale of the Securities by the Underwriters and the qualification of
the Indenture under the 1939 Act;
(iii) assuming the due authorization, execution and delivery
of this Agreement by the Company under the laws of Ontario and the
federal laws of Canada applicable therein, this Agreement (to the
extent execution and delivery are governed by the laws of the State of
New York) has been duly executed and delivered by the Company;
(iv) assuming the due authorization, execution and delivery
of the Supplemental Indenture by the Company under the laws of the
Province of Ontario and the federal laws of Canada applicable therein
and assuming the due authorization, execution and delivery of the
Supplemental Indenture by the Trustee, the Indenture (to the extent
execution and delivery are governed by the laws of New York) has been
duly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and subject to general
principles of equity (regardless of whether considered in a proceeding
in equity or at law); the Indenture has been duly qualified under the
applicable provisions of the Trust Indenture Act;
(v) assuming the due authorization, execution, issuance and
delivery of the Securities by the Company under the laws of the
Province of Ontario and the federal laws of Canada applicable therein
and assuming the due authentication of the Securities by the Trustee
in the manner described in its certificate delivered to the
Representatives on the Closing Date (which fact we have not determined
by an inspection of the
14
Securities) and in accordance with the terms of the Indenture and the
Securities, the Securities (to the extent that execution and delivery
of the Securities in accordance with the terms of the Indenture are
governed by the laws of the State of New York) have been duly executed
and delivered and (assuming the due authorization, execution and
delivery thereof by the Trustee) constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, subject to bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and subject to general principles of
equity (regardless of whether considered in a proceeding in equity or
at law);
(vi) the statements (A) in the Prospectus under the captions
"Material United States Federal Income Tax Considerations",
"Description of the Notes," "Description of Certain Indebtedness," and
(B) in "Item 8 - Litigation" of the Company's most recent annual
report on Form 20-F incorporated by reference in the Prospectus, in
each case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein in all material respects (except for the Business Corporations
Act (Ontario) and the By-laws of the Company as to which such counsel
need not express any belief);
(vii) the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus and the Securities are in the form contemplated by the
Indenture (which fact we have not determined by an inspection of the
Securities);
(viii) to the best of such counsel's knowledge, there are no
legal or governmental proceedings in the United States pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
of any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(ix) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended;
15
(x) all of the issued shares of capital stock of each
significant subsidiary incorporated in the State of Delaware have been
duly and validly issued, are fully paid and non-assessable and are
owned by the Company or by a subsidiary of the Company, free and clear
of consensual liens or security interests granted by the owners
thereof;
(xi) the Registration Statement has become effective under
the Securities Act, the Indenture has been duly qualified under the
1939 Act and the Indenture and the Form T-1 were filed with the
Commission prior to the effectiveness of the Registration Statement;
any required filing of the Prospectus has been made in the manner and
within the time period required by Rule 430A and 424(b) under the
Securities Act; and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened by the Commission under the Securities Act; and
(xii) (A) such counsel is of the opinion that the
Registration Statement and Prospectus (except for financial statements
and schedules and other financial and statistical data included
therein as to which such counsel need not express any opinion) comply
as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (B)
nothing has come to such counsel's attention that has caused it to
believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the Registration Statement at the time the
Registration Statement became effective contained any 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 (except for financial statements and schedules and
other financial and statistical data as to which such counsel need not
express any belief) the Prospectus, as of its date, contained and, as
of the Closing Date contains any untrue statement of a material fact
or omits 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.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters; and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus
in this Section 5(b) include any amendment or supplement thereto at the
Closing Date.
16
(c) The Representatives shall have received from ▇▇▇▇, Gotshal &
▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect
to the issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The Representatives shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇ &
Harcourt LLP, Canadian counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(e) With respect to Section 5(a), 5(b), 5(c) and 5(d) above, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP
and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP, respectively, may state that their
opinion and belief are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification, except as specified.
The opinions of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇ ▇▇▇▇▇▇▇
LLP described in Sections 5(a) and 5(b), respectively, shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received at the Closing Date an
opinion of ▇▇▇▇▇ & Boxalls, Cayman Islands counsel for the Company, dated
the Closing Date, to the effect that:
(i) Each of Celestica Cayman Holdings 1 Limited ("Celestica
Cayman") and IMS International Manufacturing Services Limited ("IMS
International") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and Prospectus Supplement and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure
17
to be so qualified or be in good standing would not have a material
adverse effect on either Celestica Cayman or IMS International, as
applicable;
(ii) all of the issued shares of capital stock of both Celestica
Cayman and IMS International have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly by
the Company or through a subsidiary of the Company, free and clear of
all liens, encumbrances, equities or claims; and
(iii) to such counsel's knowledge, there are no legal or
governmental proceedings in the Cayman Islands pending or threatened
to which either Celestica Cayman or IMS International is a party or to
which any of the properties of either Celestica Cayman or IMS
International is subject that, if determined adversely, would have a
material adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole.
(g) The Underwriters shall have received at the Closing Date an
opinion of ▇▇▇▇ & ▇▇▇▇▇▇ LLC, Singapore counsel for the Company, dated the
Closing Date, to the effect that:
(i) Each of Celestica Singapore Pte. Ltd. ("Celestica
Singapore") and Celestica Holdings Pte Ltd. ("Celestica Holdings") has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and Prospectus Supplement
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on either Celestica
Singapore or Celestica Holdings, as applicable;
(ii) all of the issued shares of capital stock of both Celestica
Singapore and Celestica Holdings have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly
by the Company or through a subsidiary of the Company, free and clear
of all liens, encumbrances, equities or claims; and
(iii) to such counsel's knowledge, there are no legal or
governmental proceedings in Singapore pending or threatened to which
18
either Celestica Singapore or Celestica Holdings is a party or to
which any of the properties of either Celestica Singapore or Celestica
Holdings is subject that, if determined adversely, would have a
material adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole.
The opinions of Ogier & Boxalls and Drew & ▇▇▇▇▇▇ LLC, described in
Section 5(f) and 5(g), respectively, shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
(h) The Company shall have furnished to the Representatives a
certificate of the Company, signed by either the Chief Executive Officer or
the Chief Financial Officer and a Senior Vice President of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(i) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives letters, at the Execution Time and at the
Closing Date, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that it is an independent registered public accounting firm
within the meaning of the Securities Act and the applicable rules and
regulations adopted by the Commission thereunder and they have performed a
review of the unaudited interim financial information of the Company for
the three-month period ended March 31, 2005 and as at March 31, 2005, in
accordance with Statement on Auditing Standards No. 100, and stating in
effect that:
19
(i) in their opinion the audited financial statements and
financial statement schedules incorporated by reference in the
Registration Statement and the Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related rules
and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited interim
financial information for the three-month period ended March 31, 2005,
and as at March 31, 2005; carrying out certain specified procedures
(but not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the shareholders, directors and
executive, audit, compensation, and nominating and corporate
governance committees of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to December 31,
2004, nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with applicable
accounting requirements of the Securities Act and with the
related rules and regulations adopted by the Commission; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement and the
Prospectus; and
(2) with respect to the period subsequent to March 31,
2005, there were any changes, at a specified date not more than
five days prior to the date of the letter, in the long-term debt
of the Company and its subsidiaries or capital stock of the
Company or decreases in the stockholders' equity of the Company
or decreases in working capital of the Company and its
subsidiaries as compared with the amounts shown on the March 31,
2005, consolidated balance sheet incorporated by reference in the
Prospectus, or for the period from April 1, 2005 to such
specified date there were any decreases, as compared with the
corresponding
20
period in the preceding year, in net earnings or income before
income taxes and its subsidiaries or in operating income, except
in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus, including the
information set forth under the captions "Summary - Summary Financial
Data," and in the Form 20-F incorporated by reference in the
Prospectus, including the information set forth under the caption
"Selected Financial Data," agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Prospectus in this paragraph (i) include any
supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (i) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto).
(k) The Securities shall be eligible for clearance and settlement
through The Depository Trust Company.
(l) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) or any notice given of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
21
(m) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request for the purposes of enabling
counsel to the Underwriters to pass upon the issuance and sale of the
Securities as contemplated by this Agreement and the matters referred to in
Section 5(a) and Section 5(b) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Company, the performance of any of the agreements of the Company, or the
fulfillment of any of the conditions herein contained.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Weil, Gotshal & ▇▇▇▇▇▇ LLP, U.S. counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, on the Closing
Date.
6. AGREEMENTS. The Company covenants with each Underwriter that:
(a) The Company will furnish to the Representatives, without charge,
two conformed copies of the Registration Statement (including exhibits thereto)
and for delivery to the Representatives a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to the Representatives in
New York City, without charge, prior to 10:00 a.m. New York City time on the
second Business Day next succeeding the date of this Agreement and during the
period mentioned in Section 6(c) below, as many copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement as the
Representatives may reasonably request.
(b) Prior to the completion of the distribution of the Securities by
the Underwriters (as determined by the Representatives), before amending or
supplementing the Registration Statement or the Prospectus relating to this
offering of Securities, the Company will furnish to the Representatives a copy
of each such proposed amendment or supplement and, subject to the applicable
law, will not file any such proposed amendment or supplement to which the
Representatives reasonably object, and will file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule; PROVIDED, HOWEVER, that,
prior to the completion of the distribution of the Securities by the
Underwriters (as determined by the Underwriters), the Company will not file any
document under the Exchange Act that is incorporated by reference in the
Prospectus unless, prior to such proposed filing, the Company has furnished the
Representatives with a copy of such
22
document for their review and the Representatives have not reasonably objected
to the filing of such document. The Company will promptly advise the
Representatives when any document filed under the Exchange Act that is
incorporated by reference in the Prospectus shall have been filed with the
Commission.
(c) If at any time prior to the completion of the sale of the
Securities by the Underwriters (as determined by the Representatives), any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it should be
necessary to amend or supplement the Prospectus to comply with applicable law,
the Company will promptly (i) notify the Representatives of any such event; (ii)
subject to the requirements of paragraph (b) of this Section 6, prepare an
amendment or supplement that will correct such statement or omission or effect
such compliance; and (iii) supply any supplemented or amended Prospectus to the
several Underwriters and counsel for the Underwriters without charge in such
quantities as they may reasonably request.
(d) The Company will promptly from time to time take such action as
is required to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representatives shall reasonably
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities, provided that in connection
therewith neither the Company nor any subsidiary shall be required to qualify as
a foreign corporation or to file a general consent to service of process in any
jurisdiction or subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will promptly
advise the Representatives of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) The Company will cooperate with the Representatives and use its
reasonable efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(f) The Company will not for a period of 60 days following the
Execution Time, without the prior written consent of the Banc of America
Securities LLC, offer, sell or contract to sell, or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or any
Affiliate of the Company or any person in privity with the Company or any
Affiliate of the Company), directly or indirectly, or announce the offering of,
any debt securities issued or guaranteed by the Company (other than the
Securities).
(g) The Company will, for a period of twelve months following the
23
Execution Time, furnish to the Representatives all reports or other
communications (financial or other) generally made available to shareholders,
and deliver such reports and communications to the Representatives as soon as
they are available, unless such documents are furnished to or filed with the
Commission or any securities exchange on which any class of securities of the
Company is listed and generally made available to the public.
(h) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company will pay or cause
to be paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Securities under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, the Prospectus and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and the dealers, in
the quantities herein above specified; (ii) all costs and expenses related to
the transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon; (iii) the cost of printing or producing
any Blue Sky memorandum in connection with the offer and sale of the Securities
under state securities laws and all expenses in connection with the
qualification of the Securities for offer and sale under state securities laws
as provided in Section 6(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky memorandum; (iv) the cost of
printing certificates representing the Securities; (v) the fees and expenses of
the Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (vi) the fees payable in
connection with the rating of the Securities; (vii) all expenses in connection
with any offer and sale of the Securities outside of the United States,
including filing fees; and (viii) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section. It is understood, however, that except as
provided in this Section and Sections 8 and 10(b) below, the Underwriters will
pay all of its costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Securities by them
and any advertising expenses connected with any offers it may make.
(i) During the period from the date of this Agreement to the
completion of distribution of the Securities, the Company will promptly notify
the Underwriters in writing of:
(i) any material change (actual, anticipated, contemplated
or threatened, financial or otherwise) in the business, affairs, operations,
assets, liabilities (contingent or otherwise) or capital of the Company and its
subsidiaries taken as a whole; and
24
(ii) any material fact which has arisen or been discovered
and would have been required to have been stated in the Prospectus had the fact
arisen or been discovered on, or prior to, the date of such document.
(j) Neither the Company nor any subsidiary nor any of its or their
respective officers or directors, will, directly or indirectly, until the
completion of distribution: (i) take any action designed to cause or to result
in, or that constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities; or (ii) sell, bid for,
purchase, or pay anyone any compensation for soliciting purchases of the
Securities other than the fees payable pursuant to this Agreement.
(k) During the period from the date of this Agreement to the
completion of distribution of the Securities, the Company will advise the
Underwriters, promptly after receiving notice or obtaining knowledge thereof,
of: (i) the time when any amendment or supplement to the Prospectus or
Registration Statement has been filed or becomes effective; (ii) the issuance by
the Commission of any cease trade order, stop order or any other order
preventing or suspending the trading of the Securities or the effectiveness of
the Registration Statement or any amendment thereto or any order preventing or
suspending the use of the Prospectus or any amendment or supplement thereto;
(iii) any request made by the Commission for amending the Prospectus or the
Registration Statement, or for additional information; (iv) the suspension of
the qualification of the Securities for offering or sale in any jurisdiction; or
(v) the institution, threatening or contemplation of any proceeding for any such
purpose. The Company will use its best efforts to prevent the issuance of any
such order and, if any such order is issued, to obtain the withdrawal thereof as
promptly as possible.
(l) The Company will provide to the Underwriters, Weil, Gotshal &
▇▇▇▇▇▇ LLP and Osler, ▇▇▇▇▇▇ & Harcourt LLP reasonable access during normal
business hours for the period from the date hereof through the Closing Date to
the officers, employees, facilities, books and records of the Company and its
subsidiaries.
(m) The Company will comply with all applicable securities and other
laws, rules and regulations, including, without limitation, the Sarbanes Oxley
Act, and use its best efforts to cause the Company's directors and officers, in
their capacities as such, to comply with such laws, rules and regulations,
including, without limitation, the provisions of the Sarbanes Oxley Act to the
extent applicable to a "foreign private issuer" as defined in the Exchange Act.
(n) The Company hereby acknowledges that each Underwriter will be
acting pursuant to a contractual relationship on an arm's length basis and in no
event do the parties intend that any Underwriter act or be responsible as a
fiduciary to the Company, its management, stockholders, creditors or any other
person. The Company and each Underwriter each hereby expressly disclaim any
fiduciary relationship and agree they are each responsible for making their own
independent judgments with respect to any transactions entered into among them.
25
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Banc of America Securities LLC on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel for the
Underwriters) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Securities Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in any preliminary prospectus or the Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, to the same
extent as the foregoing indemnity to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the Company by
or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that the statements set forth in
the last paragraph of the cover page regarding delivery of the Securities and,
26
under the heading "Underwriting," (i) the list of underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of no more than one such separate
counsel for all indemnified parties in each applicable jurisdiction if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for
27
any reason, the Company and the Underwriters severally agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; PROVIDED, HOWEVER, that in no case
shall (i) any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Securities Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive
28
delivery of and payment for the Securities. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this Agreement.
10. TERMINATION. (a) This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Subordinate Voting Shares shall have been
suspended by the Commission or the New York Stock Exchange or the Toronto Stock
Exchange or trading in securities generally on the New York Stock Exchange or
the Toronto Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on either of such Exchanges, (ii) a banking
moratorium shall have been declared either by U.S. or Canadian federal or New
York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any amendment or
supplement thereto).
(b) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party except as
provided in Section 6(h) hereof and provided further that Sections 1, 7, 8 and 9
shall survive such termination and remain in full force and effect.
11. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 11, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
29
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Banc of America Securities LLC General Counsel
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Banc of America
Securities LLC, at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to Celestica Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇, ▇▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at General Counsel,
attention of the Legal Department.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Toronto.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
30
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and the your acceptance shall represent a binding agreement among
the Company and the several Underwriters.
Very truly yours,
CELESTICA INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SVP and Corporate Treasurer
31
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Banc of America Securities LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
CIBC World Markets Corp.
RBC Capital Markets Corporation
Scotia Capital Inc.
Wachovia Capital Markets, LLC
McDonald Investments Inc.
By: Banc of America Securities LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
32
SCHEDULE I
PRINCIPAL AMOUNT OF
UNDERWRITERS SECURITIES
------------ -------------------
Banc of America Securities LLC $ 59,168,000
Citigroup Global Markets Inc. 59,166,000
Deutsche Bank Securities Inc. 59,166,000
CIBC World Markets Corp. 20,000,000
RBC Capital Markets Corporation 20,000,000
Scotia Capital Inc. 20,000,000
Wachovia Capital Markets, LLC 10,000,000
McDonald Investments Inc. 2,500,000
-------------------
Total........... $ 250,000,000
===================
SCHEDULE II
Celestica (U.S.A.) Inc., a Delaware corporation
Celestica (U.S. Holdings) Inc., a Delaware corporation
Celestica Corporation, a Delaware corporation
Celestica Cayman Holdings 1 Limited, a Cayman Islands corporation
IMS International Manufacturing Services Limited, a Cayman Islands corporation
1282087 Ontario Inc., an Ontario corporation
Celestica Singapore Pte Ltd., a Singapore corporation
Celestica Holdings Pte Ltd., a Singapore corporation
2
