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CELESTICA INC.
___________ SUBORDINATE VOTING SHARES(1)
FORM OF UNDERWRITING AGREEMENT
Dated: ____________
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(1) Appropriate changes to be made for the offer and sale of securities other
than Subordinate Voting Shares.
CELESTICA INC.
____________ Subordinate Voting Shares
____________ FORM OF UNDERWRITING AGREEMENT
____________ ____________
____________
Ladies and Gentlemen:
Celestica Inc., an Ontario corporation (the "COMPANY"),
proposes to issue and sell __________ Subordinate Voting Shares (the "FIRM
SHARES") to the several Underwriters named in Schedule I hereto (the
"UNDERWRITERS"). ________ shall act as representative (the "Representative") of
the several Underwriters.
The Company also proposes to issue and sell to the several
Underwriters not more than an additional ___________ Subordinate Voting Shares
(the "ADDITIONAL SHARES") if and to the extent that the Representative shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such shares granted to the Underwriters in Section 2 hereof. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"SHARES."
The Subordinate Voting Shares of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the "SUBORDINATE VOTING SHARES."
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form F-3 (Registration
No. 333-12272) (the "FIRST REGISTRATION STATEMENT"), a registration statement on
Form F-3 (Registration No. 333-50240) (the "SECOND REGISTRATION STATEMENT") and
a registration statement on Form F-3 (Registration No. 333-__________) (the
"THIRD REGISTRATION STATEMENT") under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), covering the registration of the Shares under the
Securities Act, including pursuant to Rule 429 of the Securities Act a combined
prospectus, relating to Subordinate Voting Shares, preference shares, debt
securities and warrants to purchase Subordinate Voting Shares, preference
shares, debt securities or other securities 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 "U.S. PROSPECTUS SUPPLEMENT")
specifically relating to the Shares pursuant to Rule 430A and Rule 424(b) under
the Securities Act. The term "REGISTRATION STATEMENT" means, collectively, the
First Registration Statement, the Second
Registration Statement and the Third Registration Statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "BASIC
PROSPECTUS" means the prospectus as included in the Registration Statement as
modified in accordance with Rule 430A and Rule 424(b). The term "U.S.
PROSPECTUS" means the Basic Prospectus together with the U.S. Prospectus
Supplement. The Company also has prepared and filed with the Canadian securities
regulatory authorities in all of the provinces and territories of Canada (as
amended, the "CANADIAN SECURITIES REGULATORY AUTHORITIES") pursuant to National
Instrument 44-102 of the Canadian Securities Administrators, a short form base
shelf prospectus (the "CANADIAN SHELF PROSPECTUS") and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit for
filing to, the Canadian Securities Regulatory Authorities a prospectus
supplement (the "CANADIAN PROSPECTUS SUPPLEMENT") specifically relating to the
Shares (in the English and French languages, as applicable) and otherwise
fulfill and comply with all Canadian Securities Laws, to the satisfaction of the
Underwriters, required to be fulfilled or complied with by the Company to enable
the Shares to be lawfully distributed in the Qualifying Provinces through the
Underwriters or any other investment dealer registered as such in the Qualifying
Provinces or exempt from such registration requirement. These requirements shall
be fulfilled in each of the Qualifying Provinces not later than 5:00 p.m.,
Toronto time, on ___________ or by such later date or dates as may be determined
by the Underwriters in their sole discretion. The term "CANADIAN PROSPECTUS"
means the Canadian Shelf Prospectus as supplemented by the Canadian Prospectus
Supplement. The U.S Prospectus and the Canadian Prospectus in the respective
forms first used to confirm sales of Shares are hereinafter collectively
referred to as the "PROSPECTUS." The U.S. Prospectus Supplement and the Canadian
Prospectus Supplement are hereinafter collectively referred to as the
"PROSPECTUS SUPPLEMENT." As used herein, the term "Prospectus" shall include 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 (i) U.S. Prospectus that are filed subsequent
to the date of the U.S. Prospectus by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
(ii) Canadian Prospectus that are filed subsequent to the date of the Canadian
Prospectus pursuant to all applicable securities laws in each of the provinces
and territories of Canada (the "QUALIFYING PROVINCES") and the respective
regulations and rules under such laws together with applicable published policy
statements of the Canadian Securities Administrators and the Canadian Securities
Regulatory Authorities (collectively, "CANADIAN SECURITIES LAWS").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective, 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 U.S. 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
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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 U.S. 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 U.S. 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 statements or omissions in the Registration Statement or the U.S.
Prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(c) The Canadian Shelf Prospectus has been filed with the Canadian
Securities Regulatory Authorities in compliance with the Canadian Securities
Laws and the Ontario Securities Commission issued a decision document under
National Policy 43-201 dated May 1, 2001 with respect to the Canadian Shelf
Prospectus evidencing the final receipts of the Canadian Securities Regulatory
Authorities therefor.
(d) (i) All information and statements (except information relating solely
to and furnished by the Underwriters) contained in the Canadian Prospectus,
including the documents incorporated therein by reference and any other
management information circular, financial statements or material change reports
(other than confidential material change reports) filed by the Company with any
Canadian Securities Regulatory Authority after the date of the Canadian
Prospectus and prior to the termination of the distribution of the Shares, are
true and correct and contain no misrepresentation and constitute full, true and
plain disclosure of all material facts relating to the Company and the Shares;
(ii) no material fact or information has been omitted from such disclosure
(except facts or information relating solely to the Underwriters) which is
required to be stated in such disclosure or is necessary to make the statements
or information contained in such disclosure not misleading in light of the
circumstances under which they were made; and (iii) such documents comply fully
with the requirements of the Canadian Securities Laws.
(e) 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.
(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
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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 the
business, financial condition or result of operations 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), free and clear of all liens,
encumbrances, equities or claims, except as described in the Prospectus.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) The outstanding Subordinate Voting Shares and Multiple Voting
Shares (as the term is used in the Prospectus) have been duly authorized and
are validly issued, fully paid and nonassessable. No person is entitled to
preemptive or similar rights to acquire any securities of the Company. Other
than options granted to employees of the Company pursuant to any existing
stock option plan of the Company or an entity acquired by the Company and
options issued to directors of the Company and the Company's Liquid Yield
Option(TM) Notes due 2020,2 there are no outstanding securities of the
Company convertible into or exchangeable for, or warrants, rights or options
to purchase from the Company, or obligations of the Company to issue, any
Subordinate Voting Shares, Multiple Voting Shares or any other class of
shares in the capital of the Company, except as set forth in the Prospectus.
(j) The Shares have been duly authorized and, when issued and delivered
to the Underwriters against payment therefor in accordance with the terms of
this Agreement, will be validly issued, fully paid and nonassessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(k) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
(i) any provision of applicable law or the articles of incorporation or
bylaws of the Company; (ii) any agreement or other instrument binding upon
the Company or any of its subsidiaries; or (iii) any 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
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(2) Liquid Yield Option is a trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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under this Agreement except the filing of the Canadian Prospectus Supplement
with the Canadian Securities Regulatory Authorities, the filing of the U.S.
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 Shares.
(l) The execution and delivery of this Agreement and the performance by
the Company of its obligations hereunder have been duly authorized by the
Company, and this Agreement has been duly executed and delivered by the Company
and constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms subject to: (i) bankruptcy,
insolvency, moratorium, reorganization and other laws affecting enforcement of
rights of creditors generally; (ii) general principles of equity, including the
qualification that equitable remedies, including, without limitation, specific
performance and injunction, may be granted only in the discretion of a court of
competent jurisdiction; (iii) the statutory and inherent powers of a Canadian
court to stay proceedings before it and to grant relief from forfeiture; (iv)
the limitation that any judgment of a Canadian court for a monetary amount will
be given in Canadian currency; (v) the limitation that the rights of indemnity,
contribution and waiver may be limited by applicable laws; and (vi) judicial
application of foreign laws or foreign governmental actions affecting creditors'
rights.
(m) 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 amendments or supplements 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.
(o) The Basic Prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(p) The Canadian Shelf Prospectus complied when filed in all material
respects with the Canadian Securities Laws.
(q) The Company is not and, after giving effect to the offering and sale
of the Shares 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.
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(r) 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.
(s) 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.
(t) 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 Shares registered pursuant to the Registration Statement.
(u) 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, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock 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.
(v) 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 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.
(w) 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 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
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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.
(x) 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.
(y) 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.
(z) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, provincial, state
or foreign regulatory authorities necessary to conduct their respective
businesses, and neither the 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.
(aa) 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.
(bb) KPMG LLP, who reported on and certified the financial statements
included in the Registration Statement and the Prospectus, is an independent
public accountant as required by the Securities Act.
(cc) The Company shall use the net proceeds of the offering of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(dd) The form of certificate representing the Subordinate Voting Shares
has been approved by the Company and complies with the provisions of the
BUSINESS CORPORATIONS ACT (Ontario) and the requirements of The New York Stock
Exchange and The Toronto Stock Exchange.
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(ee) The filing of any amendment to the Canadian Prospectus required by
Canadian Securities Laws (a "CANADIAN PROSPECTUS AMENDMENT") shall constitute a
representation and warranty by the Company to the Underwriters that as of the
date of filing:
(i) all information and statements (except information relating
solely to and furnished by the Underwriters) contained in the Canadian
Prospectus or any Canadian Prospectus Amendment, as the case may be,
including the documents incorporated therein by reference and any other
management information circular, financial statements or material change
reports (other than confidential material change reports) filed by the
Company with any Canadian Securities Regulatory Authority in any of the
Qualifying Provinces after the date of the Canadian Prospectus and prior
to the termination of the distribution of the Shares (collectively, the
"DOCUMENTS INCORPORATED BY REFERENCE"), are true and correct and contain
no misrepresentation and constitute full, true and plain disclosure of all
material facts relating to the Company and the Shares;
(ii) no material fact or information has been omitted from such
disclosure (except facts or information relating solely to the
Underwriters) which is required to be stated in such disclosure or is
necessary to make the statements or information contained in such
disclosure not misleading in light of the circumstances under which they
were made; and
(iii) such documents comply fully with the requirements of the
Canadian Securities Laws.
Such filings shall also constitute the Company's consent to the
Underwriters' use of the Canadian Prospectus, the Documents Incorporated By
Reference and any Canadian Prospectus Amendments in connection with distribution
of the Shares in the Qualifying Provinces in compliance with the provisions of
this Agreement and the Canadian Securities Laws.
2. AGREEMENTS TO SELL AND PURCHASE.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to the several Underwriters and each Underwriter agrees, severally and not
jointly, to purchase the number of Firm Shares from the Company set forth in
Schedule I hereto opposite the name of such Underwriter. The purchase price for
the Firm Shares shall be U.S. $_______ per share.
(b) On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to an aggregate of
__________ Additional Shares on the same basis as the Firm Shares. If the
Representative, on behalf of the Underwriters, elects to exercise such option,
the Representative shall so notify the Company in writing not later than
____________, which notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are to be
purchased. Such date may be the
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same as the Closing Date but not earlier than the Closing Date nor later than
five business days after the date of such notice. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
overallotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representative may determine)
that bears the same proportion to the total number of Additional Shares to be
purchased as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
(c) The Company hereby agrees that, without the prior written consent of
the Representative on behalf of the Underwriters, it will not, during the period
ending 90 days after the date of the closing of the offering, (i) offer, issue,
secure, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
Subordinate Voting Shares, Multiple Voting Shares or any securities convertible
into or exercisable or exchangeable for Subordinate Voting Shares or Multiple
Voting Shares or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Subordinate Voting Shares or Multiple Voting Shares whether any such swap or
transaction described in clauses (i) and (ii) above is to be settled by delivery
of Subordinate Voting Shares or Multiple Voting Shares or other securities of
the Company, in cash or otherwise. The foregoing sentence shall not apply to (a)
the sale of any Subordinate Voting Shares to the Underwriters pursuant to this
Agreement, (b) the issuance by the Company of Subordinate Voting Shares upon
exercise of an option or a warrant or the conversion of a security outstanding
on the date of the Prospectus Supplement and of which the Underwriters have been
advised in writing, (c) the issuance of any options or Subordinate Voting Shares
pursuant to the Company's existing option plans; (d) the repurchase of
Subordinate Voting Shares pursuant to an employee stock purchase plan from an
employee upon termination of such employee's employment or upon the default by
such employee on a loan incurred to acquire such Subordinate Voting Shares (or a
refinancing of such loans); or (e) the Company's issuance of Subordinate Voting
Shares or other securities in connection with the acquisition of any business,
facilities or other assets, including the issuance of Subordinate Voting Shares
or other securities in connection with employment agreements relating to any
such acquisition.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after this Agreement has been executed as in your judgment is
advisable. The Company is further advised by you that the Shares are to be
offered to the public initially at U.S. $______ per share and to certain dealers
selected by you at a price that represents a concession not in excess of $_____
per Firm Share.
4. PAYMENT AND DELIVERY. Payment for the Firm Shares shall be made to the
Company in immediately available funds in Toronto against delivery of such Firm
Shares for the account of the Underwriters at 10:00 a.m., New York City time, on
__________, or at such other time on the same or such other date, not later than
_________, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE."
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Payment for any Additional Shares shall be made to the Company in
immediately available funds in Toronto, against delivery of such Additional
Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on the date specified in the notice described in Section 2
or at such other time on the same or on such other date, in any event not later
than ____________, as shall be designated in writing by the Representative. The
time and date of such payment are hereinafter referred to as the "OPTION CLOSING
DATE."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than two full business days prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the purchase price therefor.
Concurrently with the payment by the Underwriters of the purchase price
for the Firm Shares or the Additional Shares, as the case may be, the Company
shall pay to the Underwriters the underwriting commission of U.S. $____ per Firm
Share or Additional Share, as the case may be.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Company to sell the Firm Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Firm Shares on the Closing Date
are subject to the condition that the Registration Statement shall remain
effective until the Closing Date.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by two executive officers of the
Company (including either the chief executive officer or chief financial
officer), to the effect that since the date of the Prospectus there has been no
material adverse change (actual, anticipated, contemplated or threatened,
whether financial or otherwise) in the business, affairs, operations, assets,
liabilities (contingent or otherwise) or capital of the Company and its
subsidiaries on a consolidated basis; no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission; and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officers signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(b) The Underwriters shall have received on the Closing Date an opinion of
Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, dated the
Closing Date, to the effect that:
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(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 respective provinces set forth in a schedule to such counsel's
opinion;
(iii) the authorized capital of the Company conforms as to legal
matters to the description thereof contained in the Prospectus;
(iv) the Subordinate Voting Shares and the Multiple Voting Shares
outstanding prior to the issuance of the Shares have been duly authorized
and are validly issued, fully paid and non-assessable;
(v) 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;
(vi) the Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and nonassessable and the issuance of such Shares will
not be subject to any preemptive or similar rights;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable laws of the Province of Ontario
or any federal laws of Canada applicable therein or the articles of
incorporation or bylaws of the Company 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
Canada having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of,
11
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;
(ix) the statements in the Prospectus under the captions
"Enforceability of Civil Liabilities," "Description of Capital Stock,"
excluding the statements under the caption "Certain United States Federal
Income Tax Considerations," and "Certain Canadian Federal Income Tax
Considerations" insofar as such statements constitute summaries of the
legal matters, documents or proceedings 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 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 Canadian Prospectus and are not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Canadian Prospectus;
(xi) 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 Canadian
Prospectus at the time it was filed 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 Canadian 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; and
(xii) all documents have been filed and all requisite proceedings
have been taken and all approvals, permits, consents and authorizations of
the appropriate regulatory authorities under the Canadian Securities Laws
has been obtained by the Company to qualify the Shares for distribution or
distribution to the public through investment dealers or brokers
registered under the applicable Canadian Securities Laws, who have
complied with the relevant provisions of such applicable laws.
(c) The Underwriters shall have received on the Closing Date an opinion of
▇▇▇▇ ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated the Closing Date, to the
effect that:
(i) each subsidiary of the Company set forth in a schedule to such
counsel's opinion incorporated in the State of Delaware has been duly
incorporated, is validly existing as a corporation in good standing under
the laws
12
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, and the
performance by the Company of its obligations under, this Agreement, will
not contravene any provision of applicable federal law of the United
States or the laws of the State of New York 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, 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 Shares by the Underwriters;
(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) the statements in the U.S. Prospectus under the caption
"Description of Capital Stock - Certain United States Federal Income Tax
Considerations", 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);
(v) 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 U.S.
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 U.S. Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as required;
(vi) the Company is not and, after giving effect to the offering and
sale of the Shares 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;
13
(vii) all of the issued shares of capital stock of each 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;
(viii) any required filing of the U.S. Prospectus has been made in
the manner and within the time period required by Rules 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
(ix) (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, (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 ________________, 200_ 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 U.S.
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 and
(C) 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 may not express
any belief) the Canadian Shelf Prospectus at the time that the Canadian
Shelf Prospectus was filed contained any untrue statement of 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) as of the
Closing Date the Canadian Prospectus 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.
(d) The Underwriters shall have received on the Closing Date an opinion of
______________, Canadian counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in Sections 5(b)(vi), 5(b)(vii) and 5(b)(ix)
(but only as to the statements in the Canadian Shelf Prospectus under
"Description of Share Capital"), 5(b)(xi), 5(b)(xii) and 5(b)(xiii) above. With
respect to subparagraphs (vi) and (vii) of such paragraph (b), __________
14
shall be entitled to rely upon the opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
LLP, in rendering such opinion.
(e) The Underwriters shall have received on the Closing Date an opinion of
________________, U.S. counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in Sections 5(c)(iii) (but only as to the
statements in the U.S. Prospectus under "Underwriting") and 5(c)(vii) above.
With respect to Section 5(b)(xi) and 5(c)(vii) above, Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ______________ and _____________,
respectively, may state that their opinion and belief are based upon their
participation, if any, 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 Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, and ▇▇▇▇ ▇▇▇▇▇▇▇ LLP
described in Sections 5(b) and 5(c), respectively, shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received on the Closing Date an opinion of
Addleshaw & Booth, U.K. counsel for the Company, dated the Closing Date, to the
effect that:
(i) Celestica Limited 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 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 Celestica Limited;
(ii) all of the issued shares of capital stock of Celestica Limited
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 United Kingdom pending or threatened to
which Celestica Limited is a party or to which any of the properties of
Celestica Limited is subject that, if determined adversely, would have a
Material Adverse Effect.
The opinion of Addleshaw & Booth, described in Section 5(f), shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
15
(g) The Underwriters shall have received, on the Closing Date, a letter
dated the Closing Date in form and substance satisfactory to the Underwriters,
from KPMG LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus; PROVIDED
that the letter delivered on the Closing Date shall use a "cut-off date" not
earlier than three business days prior to the Closing Date.
(h) The Shares shall have been approved for listing on The New York Stock
Exchange, subject to official notice of issuance, and shall have been
conditionally approved for listing on The Toronto Stock Exchange, subject to the
Company fulfilling the requirements of such exchange.
(i) At or before the Closing Date, the Underwriters shall have received
such further certificates, documents, opinions, and other information as they
may have reasonably requested.
(j) The several obligations of the Underwriters to purchase the Additional
Shares hereunder are subject to the delivery to the Representative on the Option
Closing Date of such documents as it may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Shares and other matters related to the issuance of the Additional
Shares.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you, without charge, two conformed copies of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish to you in New York City, without charge, prior
to 10:00 a.m. New York City time on the second business day succeeding the date
of this Agreement and during the period mentioned in Section 6(d) below, as many
copies of the U.S. Prospectus and any supplements and amendments thereto or to
the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus relating to this offering of Shares, to furnish to you a copy of each
such proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file with the
Canadian Securities Regulatory Authorities in accordance with the Canadian
Securities Laws any prospectus required to be filed and to 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.
(c) To furnish to each of the Underwriters, without charge, commercial
copies of the Canadian Prospectus in the English and French languages in such
numbers and in such cities as the Underwriters may reasonably request by oral
instructions to the printer of the Canadian Prospectus prior to 10:00 a.m.
Toronto time on the second business day succeeding the date of this Agreement.
The Company shall also provide the following to the Underwriters:
16
(i) a copy of the Canadian Shelf Prospectus and the Canadian
Prospectus in the English language signed and certified as required by the
Canadian Securities Laws applicable in the Canadian Securities Regulatory
Authority other than Quebec;
(ii) a copy of the Canadian Shelf Prospectus and the Canadian
Prospectus in the French language signed and certified as required by the
Canadian Securities Laws applicable in Quebec;
(iii) a copy of any other document required to be filed by the
Company in compliance with the Canadian Securities Laws;
(iv) an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP addressed to
the Underwriters, the Company and __________________ [UNDERWRITERS'
CANADIAN COUNSEL] in form and substance satisfactory to the Underwriters,
acting reasonably, dated as of the date of the Canadian Prospectus, to the
effect that the French language version of the Canadian Prospectus,
including in each case the documents incorporated by reference therein,
except for the Financial Information (as defined below), as to which no
opinion need be expressed, is in all material respects a complete and
accurate translation of the English language version thereof, and that
such English and French language versions are not susceptible of any
materially different interpretation with respect to any matter contained
therein. The consolidated financial statements of the Company included in
the Canadian Prospectus, together with the reports of KPMG LLP on such
financial statements as at and for the periods included in the Canadian
Prospectus and including the notes with respect to such financial
statements and Management's Discussion and Analysis of Financial Condition
and Results of Operations included in the Prospectus are referred to as
the "Financial Information."
(v) an opinion of KPMG LLP addressed to the Underwriters, the
Company, [UNDERWRITERS' CANADIAN COUNSEL] and Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Vineberg LLP, dated the date of the Canadian Prospectus, to the effect
that the French language version of the Financial Information is in all
material respects, a complete and proper translation of the English
language version thereof.
(d) If, during such period after the first date of the public offering of
the Shares as in the opinion of counsel for the Underwriters the Prospectus is
required by law to be delivered in connection with sales by the Underwriters,
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare and file with the Commission and the Canadian Securities
Regulatory Authorities, as the case may be, and furnish, at its own expense, to
the Underwriters to which Shares may have been sold by you either amendments or
supplements to the Canadian Prospectus and U.S. Prospectus, as the case may be,
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so
17
that the Prospectus, as amended or supplemented, as the case may be, will
comply with law. The provisions of paragraph (c) above shall apply, mutatis
mutandis, to any such amendment or supplement filed with the Canadian Securities
Regulatory Authorities.
(e) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request, 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.
(f) To use its best effort to effect the listing of the Shares on The New
York Stock Exchange and The Toronto Stock Exchange.
(g) To make generally available to the Company's shareholders and to you
as soon as reasonably practicable an earnings statement covering the
twelve-month period ending ____________ that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(h) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to 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 Shares 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 dealers, in the quantities herein above specified; (ii) all
costs and expenses related to the transfer and delivery of the Shares 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 Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale under state
securities laws as provided in Section 6(e) 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) all costs and expenses incident to listing the Shares on The
New York Stock Exchange and The Toronto Stock Exchange; (v) the cost of printing
certificates representing the Shares; (vi) the costs and charges of any transfer
agent, registrar or depositary; (vii) all expenses in connection with any offer
and sale of the Shares outside of the United States and Canada, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection with offers and sales outside of the United States and Canada; 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 7 and Section 9 below, the Underwriters will pay all of its costs and
expenses, including fees and disbursements of its counsel, stock transfer taxes
payable on resale of any of the Shares by its 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 Shares, to promptly notify the Underwriters in writing of:
18
(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 seen as a whole; and
(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 or other entity over which the
Company exercises control or significant influence, 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 Shares; (ii) sell, bid for, purchase, or
pay anyone any compensation for soliciting purchases of the Shares other than
the fees payable pursuant to this Agreement; or (iii) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(k) To promptly from time to time take such further action as the
Underwriters may reasonably request to qualify the Shares for distribution and
sale under the securities laws of such jurisdictions of Canada and the United
States as the Underwriters may 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 Shares, provided that in connection therewith the Company shall not be
required to qualify as an extra-provincial or foreign corporation or to file a
general consent to service of process in any jurisdiction or to subject itself
to taxation in any such jurisdiction.
(l) To 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 any Canadian Securities Regulatory Authority or by the SEC
of any cease trade order, stop order or any other order preventing or suspending
the trading of the Shares or the effectiveness of the Canadian Prospectus or the
Registration Statement or any amendment thereto or any order preventing or
suspending the use of the Canadian Prospectus, U.S. Prospectus or any amendment
or supplement thereto; (iii) any request made by any Canadian Securities
Regulatory Authority or by the SEC to amend the Canadian Prospectus, the U.S.
Prospectus, or the Registration Statement, or for additional information; (iv)
the suspension of the qualification of the Shares 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.
(m) To provide to the Underwriters, _______________________ and
_______________ reasonable access during normal business hours for the period
from the date hereof through the date of the expiry of the option to purchase
Additional Shares to the officers, employees, facilities, books and records of
the Company and its subsidiaries.
19
7. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriters within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by or on behalf
of any Underwriter through you expressly for use therein; PROVIDED, HOWEVER,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if a copy of the U.S.
Prospectus or the Canadian Final Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto), as the
case may be, was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the U.S.
Prospectus or the Canadian Final Prospectus (as so amended or supplemented), as
the case may be, would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company to furnish as many copies of the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request in accordance with Section 6(a), 6(b) or 6(c) hereof.
(b) Each Underwriter agrees to indemnify and hold harmless the Company,
its directors and its officers who have signed the Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Underwriter but only
with reference to information relating to the Underwriter furnished to the
Company in writing by you expressly for use in the Registration Statement, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party
20
shall have mutually agreed to the retention of such counsel in writing or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by _____________________ in
the case of parties indemnified pursuant to Section 7(a), and by the Company in
the case of parties indemnified pursuant to Section 7(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than sixty days
after receipt by such indemnifying party of the aforesaid request; and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Shares;
or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material
21
fact relates to information supplied by the Company or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 7(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement; (ii) any investigation made
by or on behalf of any Underwriters or any person controlling any Underwriters
or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
8. TERMINATION. This Agreement shall be subject to termination by notice
given by you to the Company, if: (A) (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of The
New York Stock Exchange, The Toronto Stock Exchange, the American Stock
Exchange, the NASD, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York or Canada shall have been declared by either Federal or
New York State or Canadian authorities; (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
law or regulation or any calamity or crisis that, in your judgment, is material
and adverse; or (v) there shall have occurred a material change or development
involving a prospective material change in Canadian taxation adversely affecting
the holders of the Shares or the imposition of exchange controls by the United
States or Canada and (b) in the case of any of the events specified in
22
clauses 8(A)(i) through 8(A)(v), such event, singly or together with any other
such event, makes it, in your judgment, impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus; (B) after the
execution of this Agreement and prior to the Closing Date, any enquiry, action,
suit, investigation or other proceeding, whether formal or informal, shall have
been instituted or threatened or any order shall have been made by any Canadian
or U.S. federal, provincial, state or other governmental authority in relation
to the Company, which, in the reasonable opinion of any of the Underwriters,
operates to prevent or restrict the distribution or trading of the Subordinate
Voting Shares; or (C) after the execution of this Agreement and prior to the
Closing Date, there shall have occurred any material change or a change in any
material fact with respect to the business, operations or affairs of the Company
and its subsidiaries on a consolidated basis, which in the reasonable opinion of
any of the Underwriters, would be expected to have a significant adverse effect
on the market price or value of the Subordinate Voting Shares.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Firm Shares
or Additional Shares, as the case may be, that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of the Shares to be purchased
on such date by all Underwriters, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule I bears to the aggregate number of Firm
Shares set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; PROVIDED that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Shares without the written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and
the aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on the
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
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If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out of pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
By the execution and delivery of this Agreement, the Company (i) acknowledges
that it has, by separate written instrument, irrevocably designated and
appointed ▇▇▇▇ ▇▇▇▇▇▇▇ LLP (or any successor) (together with any successor, the
"AGENT FOR SERVICE"), as its authorized agent upon which process may be served
in any suit or proceeding arising out of or relating to this Agreement or the
Shares that may be instituted in any federal or state court in the State of New
York, or brought under federal or state securities laws, and acknowledges that
the Agent for Service has accepted such designation; (ii) submits to the
jurisdiction of any such court in any such suit or proceeding, and (iii) agrees
that service of process upon the Agent for Service and written notice of said
service to the Company (mailed or delivered to its Chief Financial Officer at
its principal office in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇), shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. The Company further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment of the Agent for Service
in full force and effect for a period of six years from the date of this
Agreement.
If for the purposes of obtaining judgment in any court it is necessary to
convert a sum due hereunder into any currency other than United States dollars,
the parties hereto agree, to the fullest extent that they may effectively do so
that the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Underwriters could purchase United States dollars
with such other currency in the City of New York on the business day preceding
that on which final judgment is given. The obligations of the Company in respect
of any sum due from it to the Underwriters shall, notwithstanding any judgement
in a currency other than United States dollars, not be discharged until the
first business day, following receipt by the Underwriters of any sum adjusted to
be so due in such other currency, on which (and only to the extent that) the
Underwriters may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to the Underwriters hereunder,
the Company agrees, as a separate obligation and notwithstanding any such
judgement, to indemnify the Underwriters against such loss. If the United States
dollars so purchased are greater than the sum originally due to such
Underwriters hereunder, the Underwriters agrees to pay to the Company (but
without duplication) an amount equal to the excess of the dollars so purchased
over the sum originally due to the Underwriters hereunder.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgement, attachment in aid of execution
or otherwise) with respect to itself or its
24
property, it hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents, to the extent permitted by
law.
11. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of New York.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
CELESTICA INC.
By ------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
[UNDERWRITERS],
-----------------------------------
as of the date first above written:
By -----------------------------
Authorized Signatory
By -----------------------------
Authorized Signatory
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