Exhibit 1.1
5,000,000 Ordinary Shares
UTi WORLDWIDE INC.
(A British Virgin Islands company)
UNDERWRITING AGREEMENT
December __, 2002
BEAR, XXXXXXX & CO. INC.
X.X. XXXXXX SECURITIES INC.
BB&T CAPITAL MARKETS, A DIVISION OF
XXXXX & XXXXXXXXXXXX, INC.
XXXXXX FRERES & CO. LLC
as Representatives of the
several Underwriters named in
Schedule I attached hereto (each a "Representative,"
and together, the "Representatives")
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
UTi Worldwide Inc., a corporation organized and existing under the laws of
the British Virgin Islands (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 4,000,000 shares (the
"Company Shares") of its Ordinary Shares, no par value per share (the "Ordinary
Shares"). PTR Holdings Inc., a corporation organized and existing under the laws
of the British Virgin Islands (the "Selling Shareholder"), severally proposes to
sell to the Underwriters an aggregate of 1,000,000 Ordinary Shares (the "Selling
Shareholder Shares" and together with the Company Shares, the "Firm Shares").
For the sole purpose of covering over-allotments in connection with the sale of
the Firm Shares, at the option of the Underwriters, the Company also proposes to
issue and sell to the Underwriters up to an additional 600,000 Ordinary Shares
(the "Company Additional Shares") and the Selling Shareholder also propose to
sell to the Underwriters up to an additional 150,000 Ordinary Shares (the
"Selling Shareholder Additional Shares" and, together with the Company
Additional Shares, the "Additional Shares"). The Firm Shares and any Additional
Shares purchased by the Underwriters are referred to herein as the "Shares." The
Shares are more fully described in the Registration Statement and the Prospectus
referred to below. Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx" or the "Lead
Manager") is acting as lead manager in connection with the offering and sale of
the Shares (the "Offering").
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters as of the
date hereof and as of the Closing Date and each Additional Closing Date (each as
defined in Section 3 below) that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form F-3 (No. 333-101309), for the
registration of the Shares under the U.S. Securities Act of 1933, as amended
(the "Act"). Such registration statement, including the prospectus, financial
statements and schedules, exhibits and all other documents filed as a part
thereof, as amended at the time of effectiveness of the registration statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A or Rule 434 of the Rules
and Regulations of the Commission under the Act (the "Regulations"), is herein
called the "Registration Statement" and the prospectus, in the form first filed
with the Commission pursuant to Rule 424(b) of the Regulations or filed as part
of the Registration Statement at the time of effectiveness if no Rule 424(b) or
Rule 434 filing is required, is herein called the "Prospectus," except that if
any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the Offering which
differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to Rule
424(b) of the Rules and Regulations), the term "Prospectus" shall refer to such
revised prospectus or prospectus supplement, as the case may be, from and after
the time it is first provided to the Underwriters for such use. The term
"preliminary prospectus" as used herein means a preliminary prospectus as
described in Rule 430 of the Regulations. The Company is entitled to utilize
Form F-3 to register the Shares under the General Instructions thereto and under
the Regulations. If the Company has filed or is required pursuant to the terms
hereof to file a registration statement pursuant to Rule 462(b) under the Act
increasing the size of the Offering by registering additional Ordinary Shares (a
"Rule 462(b) Registration Statement"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration
Statement, which, if filed, becomes effective upon filing, no other document
with respect to the Registration Statement has heretofore been filed with the
Commission. All of the Shares have been registered under the Act pursuant to the
Registration Statement or, if any Rule 462(b) Registration Statement is filed,
will be duly registered under the Act with the filing of such Rule 462(b)
Registration Statement. No stop order suspending the effectiveness of either the
Registration Statement or the Rule 462(b) Registration Statement, if any, has
been issued and, to the Company's knowledge, no proceeding for that purpose has
been initiated or threatened by the Commission. Any references herein to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 6 of Form F-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the effective date of
the Registration Statement, the date of use of such preliminary prospectus or
the date of the Prospectus, as the case may be, and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include (i) the filing of any document under the Exchange Act after the
effective date of the Registration Statement, the date of such preliminary
prospectus or the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document so filed. All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a preliminary prospectus and the Prospectus, or any
amendments or supplements to any of the foregoing, shall be deemed to include
any copy thereof
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filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval System (the "XXXXX System").
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) or Rule 434 of the Regulations, when any supplement to
or amendment of the Prospectus is filed with the Commission and at the Closing
Date and the Additional Closing Date, if any, the Registration Statement, the
Prospectus, any documents incorporated therein by reference and any amendments
thereof and supplements thereto complied or will comply in all material respects
with the applicable provisions of the Act, the Regulations and the Exchange Act
and does not or will not contain an untrue statement of a material fact and does
not or will not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus,
in light of the circumstances under which they were made, not misleading. When
any related preliminary prospectus was first filed with the Commission (whether
filed as part of the registration statement for the registration of the Shares
or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when
any amendment thereof or supplement thereto was first filed with the Commission,
such preliminary prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the Act, the
Regulations and the Exchange Act and did not contain an untrue statement of a
material fact and did not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein in light of the
circumstances under which they were made not misleading. No representation and
warranty is made in this subsection (b), however, with respect to any
information contained in or omitted from the Registration Statement or the
Prospectus or any related preliminary prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through Bear
Xxxxxxx as herein stated expressly for use in connection with the preparation
thereof. The parties acknowledge and agree that such information provided by or
on behalf of any Underwriter consists solely of the material included in
paragraphs six, nine, ten, eleven, thirteen and fourteen under the caption
"Underwriting" in the Prospectus. If Rule 434 of the Regulations is used, the
Company will comply with the requirements of Rule 434 and the Prospectus shall
not be "materially different," as such term is used in Rule 434, from the
Prospectus included in the Registration Statement at the time it became
effective.
(c) Deloitte & Touche LLP, who have audited the financial
statements and related financial statement schedule included or incorporated by
reference in the Registration Statement, are independent certified public
accountants with respect to the Company as required by the Act and the
Regulations.
(d) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, the Company has not paid any
dividends on its capital stock and there has been no material adverse change or
any development involving a prospective material adverse change, whether or not
arising from transactions in the ordinary course of business, on (i) the
business, condition (financial or otherwise), results of operations,
shareholders' equity,
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properties or prospects of the Company and each subsidiary of the Company listed
on Exhibit A hereto (each, a "Subsidiary," and together, the "Subsidiaries"),
taken as a whole (a "Material Adverse Change" or a "Material Adverse Effect");
(ii) the long-term debt of the Company and its Subsidiaries, taken as a whole;
(iii) the capital stock of the Company (excluding fluctuations in trading
price); or (iv) the Offering or consummation of any of the other transactions
contemplated by this Agreement. Since the date of the latest balance sheet
presented in, or incorporated by reference in, the Registration Statement and
the Prospectus, neither the Company nor any of the Subsidiaries has incurred or
undertaken any liabilities or obligations, whether direct or indirect,
liquidated or contingent, matured or unmatured, or entered into any transactions
which are material to the Company and the Subsidiaries, taken as a whole, except
for liabilities, obligations and transactions which are disclosed in the
Registration Statement and the Prospectus.
(e) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Company, and this Agreement has
been duly and validly executed and delivered by the Company.
(f) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
its Subsidiaries pursuant to, any agreement, instrument, franchise, license or
permit to which the Company or any of its Subsidiaries is a party or by which
any of such corporations or their respective properties or assets may be bound,
or (ii) violate or conflict with any provision of the Memorandum and Articles of
Association of the Company, as amended and revised, or the articles or
certificate of incorporation, by-laws or similar governing documents of any of
its Subsidiaries or any judgment, decree, order, statute, rule or regulation of
any court or any public, governmental or regulatory agency or body having
jurisdiction over the Company or its Subsidiaries or any of their respective
properties or assets. No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or its Subsidiaries or any of their respective properties or assets is required
for the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, including the issuance,
sale and delivery of the Shares to be issued, sold and delivered by the Company
hereunder, except the registration under the Act of the Shares, approval of the
Shares for quotation on the Nasdaq National Market, and such consents,
approvals, authorizations, orders, registrations, filings, qualifications,
licenses and permits as may be required under state securities or Blue Sky laws
or by the laws and rules of the National Association of Securities Dealers, Inc.
(the "NASD"), in connection with the purchase and distribution of the Shares by
the Underwriters.
(g) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization" and, after giving effect to the Offering and
the other transactions contemplated by this Agreement, the Registration
Statement and the Prospectus, will be as set forth in the column entitled "Pro
forma as adjusted" under the caption "Capitalization." All of the issued
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and outstanding shares of capital stock of the Company are fully paid and
non-assessable and have been duly and validly authorized and issued, in
compliance with all applicable state, federal and foreign securities laws and
not in violation of or subject to any preemptive or similar rights that entitle
or will entitle any person to acquire from the Company or any Subsidiary upon
the issuance or sale thereof any Ordinary Shares, any other equity security of
the Company or any Subsidiary and any security convertible into, or exercisable
or exchangeable for, any Ordinary Shares or other such security (any "Relevant
Security"), except for such rights as may have been fully satisfied or waived
prior to the effectiveness of the Registration Statement. The Shares to be
delivered on the Closing Date and the Additional Closing Date, if any, have been
duly and validly authorized and, when delivered in accordance with this
Agreement, will be duly and validly issued, fully paid and non-assessable, will
not have been issued in violation of or subject to any preemptive or similar
rights that entitle or will entitle any person to acquire any Relevant Security
from the Company or any Subsidiary upon issuance or sale of Shares in the
Offering. The Ordinary Shares and the Shares conform to the descriptions thereof
contained in the Registration Statement, the Prospectus and any documents
incorporated therein by reference. Except as disclosed in the Registration
Statement and the Prospectus, including the notes to the financial statements
incorporated or deemed incorporated by reference therein, and except for (i)
existing contingent obligations that may be settled by the issuance of Ordinary
Shares, which obligations relate to acquisition transactions consummated prior
to the effective date of the Registration Statement that are disclosed in the
Registration Statement or the Prospectus, and (ii) options, shares and other
rights issued pursuant to employee share incentive plans and trusts, stock
option plans or employee stock purchase plans that are disclosed in the
Registration Statement, the Prospectus or the notes to the financial statements
incorporated therein, neither the Company nor any Subsidiary has outstanding
options to purchase, or any preemptive rights or other rights to subscribe for
or to purchase, or any contracts or commitments to issue or sell, any Relevant
Security.
(h) Each of the Company and its Subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and its
Subsidiaries is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in good
standing which will not in the aggregate have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole. Each of the Company and its
Subsidiaries has all requisite corporate power and authority, and all necessary
consents, approvals, authorizations, orders, registrations, qualifications,
licenses and permits of and from all public, regulatory or governmental agencies
and bodies, to own, lease and operate its properties and conduct its business as
now being conducted and as described in the Registration Statement, the
Prospectus and any documents incorporated therein by reference (except for those
the absence of which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole), and no such consent, approval, authorization, order,
registration, qualification, license or permit contains a materially burdensome
restriction not adequately disclosed in the Registration Statement, the
Prospectus and any documents incorporated therein by reference.
(i) Except as described in the Prospectus and any documents
incorporated therein by reference, there is no legal or governmental proceeding
or other litigation
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to which the Company or any of its Subsidiaries is a party or to which any
property of the Company or any of its Subsidiaries is subject or which is
pending or, to the knowledge of the Company, contemplated against the Company or
any of its Subsidiaries which, if determined adversely against the Company of
any of its Subsidiaries, is reasonably likely to have a Material Adverse Effect
on the Company and the Subsidiaries, taken as a whole.
(j) The Company has not taken nor will it take, and, to the
knowledge of the Company, none of its affiliates (within the meaning of Rule 144
under the Act) has taken, directly or indirectly, any action designed to cause
or result in, or which constitutes or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Ordinary
Shares to facilitate the sale or resale of the Shares.
(k) The financial statements, including the notes thereto and
related financial statement schedule, incorporated by reference in the
Registration Statement and the Prospectus, present fairly the financial position
of the Company and its consolidated Subsidiaries as of the dates indicated and
the results of its operations for the periods specified; except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in conformity with United States generally accepted accounting
principles ("US GAAP") applied on a consistent basis throughout the periods
involved; and the supporting schedules included or incorporated by reference in
the Registration Statement present fairly the information required to be stated
therein. The other financial and statistical information and data included or
incorporated by reference in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus and the books and records of the respective entities
presented therein.
(l) No pro forma or as adjusted financial statements are
required to be included or incorporated by reference in the Registration
Statement and the Prospectus in accordance with Regulation S-X. The pro forma
and as adjusted balance sheet data which are included in the Registration
Statement and the Prospectus have been properly compiled, and prepared in
accordance with the disclosures contained in the applicable footnotes thereto
and include all adjustments necessary to present fairly in accordance with US
GAAP the pro forma financial position of the respective entity or entities
presented therein at the respective dates indicated.
(m) The assumptions used in preparing the pro forma and as
adjusted financial information included or incorporated by reference in the
Registration Statement and the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or
events described therein, the related adjustments made in the preparation of
such pro forma and as adjusted financial information give appropriate effect to
those assumptions, and such pro forma and as adjusted financial information
reflect the proper application of those adjustments to the corresponding
historical financial statement amounts.
(n) The statistical and market-related data included or
incorporated by reference in the Registration Statement and the Prospectus are
based on or derived from sources which the Company reasonably believes to be
reliable and accurate, and such data are not inconsistent with the sources from
which they are derived.
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(o) The Company is subject to the reporting requirements of
either section 13(a) or section 15(d) of the Exchange Act and files reports with
the Commission on the XXXXX System or, as permitted by the rules and regulations
thereunder, on paper. The Ordinary Shares are registered pursuant to section
12(g) of the Exchange Act and the outstanding Ordinary Shares (including the
Shares) are listed for quotation on the Nasdaq National Market, and the Company
has taken no action designed to, or likely to have the effect of, terminating
the registration of the Ordinary Shares under the Exchange Act or de-listing the
Ordinary Shares from the Nasdaq National Market, nor has the Company received
any notification that the Commission or the Nasdaq National Market is
contemplating terminating such registration or listing.
(p) The Company has not prior to the date hereof made any
offer or sale of any securities which could be "integrated" with the offer and
sale of the Shares pursuant to the Registration Statement. Except as disclosed
in the Registration Statement and the Prospectus (including documents
incorporated or deemed to be incorporated by reference therein or in the notes
to the financial statements incorporated or deemed incorporated therein), the
Company has not sold or issued any Relevant Security during the six-month period
preceding the date of the Prospectus, including but not limited to any sales
pursuant to Rule 144A or Regulations D or S under the Act, other than Ordinary
Shares issued upon the exercise of options, shares and other rights issued
pursuant to employee share incentive plans or trusts, stock option plans or
employee stock purchase plans that are disclosed in the Registration Statement,
the Prospectus or the notes to the financial statements incorporated therein and
other than Ordinary Shares issued or issuable in connection with acquisition
transactions consummated prior to the effective date of the Registration
Statement that are disclosed in the Registration Statement or the Prospectus.
(q) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder, and,
when read together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
Closing Date and each Additional Closing Date, will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(r) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Shares contemplated hereby, and any
such rights have either been fully complied with by the Company or effectively
waived by the holders thereof, and any such waivers remain in full force and
effect.
(s) The Company is not, and upon consummation of the
transactions contemplated hereby will not be (i) subject to registration as an
"investment company" under the Investment Company Act of 1940, or (ii)
classified as a passive foreign investment company for United States federal
income tax purposes, and, to the Company's knowledge, it is not an entity
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"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940.
(t) No relationship, direct or indirect, exists between or
among the Company or its Subsidiaries, on the one hand, and the directors,
officers, shareholders, customers or suppliers of the Company or its
Subsidiaries, on the other hand, which is required by the Act, the Exchange Act
or the Regulations to be described in the Registration Statement and the
Prospectus which is not so described. To the Company's knowledge, there are no
outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees of indebtedness by the Company to or
for the benefit of any of the officers or directors of the Company or any of
their respective family members which are required by the Act or the Regulations
to be disclosed in the Registration Statement and the Prospectus which are not
so disclosed. Since July 30, 2002, the Company has not, in violation of the
Xxxxxxxx-Xxxxx Act of 2002, directly or indirectly, including through a
Subsidiary, extended or maintained credit, arranged for the extension of credit,
or renewed an extension of credit, in the form of a personal loan to or for any
director or executive officer of the Company.
(u) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission, or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or caused by
the Company (or, to the Company's knowledge, any other entity for whose acts or
omissions the Company is or may be liable) upon any property now or previously
owned or leased by the Company or any of the Subsidiaries, or upon any other
property, which would be a violation of or give rise to any liability under any
applicable law, rule, regulation, order, judgment, decree or permit relating to
pollution or protection of human health and the environment ("Environmental
Law"), except for violations and liabilities which, individually or in the
aggregate, with all such violations and liabilities, would not have a Material
Adverse Effect on the Company and its Subsidiaries, taken as a whole, or which
are otherwise alleged or as disclosed under "Item 8. Financial Information --
Legal or Arbitration Proceedings" in the Company's Annual Report on Form 20-F
for the fiscal year ended January 31, 2002. There has been no disposal,
discharge, emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company or any of the
Subsidiaries has knowledge, except as would not, individually or in the
aggregate, have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole. The Company has not agreed to assume, undertake or provide
indemnification for any liability of any other person under any Environmental
Law, including any obligation for cleanup or remedial action, except as would
not, individually or in the aggregate, have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole.
(v) Neither the Company nor any Subsidiary is in violation or
breach of, or in default under (nor has an event occurred that with notice,
lapse of time or both, would constitute a default under), any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject, except for violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect on the Company
and the Subsidiaries, taken as a whole.
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(w) There are no contracts or other documents (including,
without limitation, any voting agreement) that are required to be described in
the Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement by the Act, the Exchange Act or the Regulations and which
have not been so described or incorporated by reference therein or filed.
(x) To the Company's knowledge, except as disclosed in the
Registration Statement and the Prospectus and other than this Agreement, there
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment in
connection with the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus.
(y) The Company and its Subsidiaries maintain systems of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with US GAAP and to maintain
accounting for assets; (iii) the 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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(z) There are no existing or, to the knowledge of the Company,
imminent material labor disturbances by the employees of the Company or any
Subsidiary and there are no existing, or to the knowledge of the Company and its
Subsidiaries, imminent disputes with any material independent contractor of the
Company or any Subsidiary, which, in any case, individually or in the aggregate,
would have a Material Adverse Effect on the Company and its Subsidiaries, taken
as a whole.
(aa) Except as described in the Registration Statement and as
shall be described in the Prospectus, the Company or one of its Subsidiaries has
(i) good and marketable title to all material real and personal properties owned
by it or them, free and clear of all liens, security interests, pledges,
charges, encumbrances and mortgages, other than such as do not materially and
adversely affect the value of such properties, and (ii) valid, subsisting and
enforceable leases for all material real and personal properties leased by it or
them, in each case, subject to such exceptions as, individually or in the
aggregate, do not and are not reasonably likely to have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole.
(bb) Except as described in the Registration Statement and the
Prospectus or documents incorporated therein by reference, the Company or one of
its Subsidiaries owns or possesses valid and enforceable licenses or other
rights to use all inventions, patents, patent applications, trademarks, service
marks, trade names, copyrights, technology, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), proprietary techniques (including processes
and substances) and other intellectual property rights necessary to conduct the
business now conducted by the Company and its Subsidiaries, taken as a whole, as
described in the Registration Statement and the Prospectus or documents
incorporated therein by reference
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("Intellectual Property"); other than as described in the Registration Statement
and the Prospectus or documents incorporated therein by reference: (i) to the
Company's knowledge there are no third parties who have any rights in the
Intellectual Property that could preclude the Company or its Subsidiaries from
conducting its or their business as currently conducted as described in the
Registration Statement and the Prospectus; (ii) there are no pending or, to the
Company's knowledge, threatened material actions, suits, proceedings,
investigations or claims by others challenging the rights of the Company, its
Subsidiaries or (if the Intellectual Property is licensed) to the Company's
knowledge, challenging the rights of the licensor thereof in any Intellectual
Property owned or licensed to the Company or its Subsidiaries; (iii) to the
knowledge of the Company, the Company, its Subsidiaries and (if the Intellectual
Property is licensed) to the Company's knowledge, the licensor thereof has not
infringed, or received any notice of infringement of or conflict with, any
rights of others with respect to the Intellectual Property; and (iv) to the
knowledge of the Company, there is no dispute between it or any licensor with
respect to the Intellectual Property.
(cc) The Company and its Subsidiaries maintain insurance with
insurers of the types and in the amounts that the Company reasonably believes is
(i) sufficient to satisfy the requirements under any of the Company's or its
Subsidiaries' material agreements, licenses or other contracts requiring the
Company to carry insurance and (ii) customary for similar companies engaged in
similar businesses, all of which insurance is in full force and effect, except
where the failure to maintain such insurance would not have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole. The Company
reasonably believes that it will be able to renew its existing insurance as and
when such coverage expires or to obtain replacement insurance sufficient to
satisfy any requirements of its material agreements, licenses or other contracts
at a cost that would not have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole.
(dd) No "prohibited transaction" (as defined in section 406 of
the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the
"Code")), or "accumulated funding deficiency" (as defined in section 302 of
ERISA) or any of the events set forth in section 4043(b) of ERISA (other than
events with respect to which the 30-day notice requirement under section 4043 of
ERISA has been waived) has occurred with respect to any employee benefit plan
which, individually or in the aggregate, would have a Material Adverse Effect on
the Company and the Subsidiaries, taken as a whole; each employee benefit plan
for which the Company would have any liability is in compliance in all material
respects with applicable law, including ERISA and the Code; the Company has not
incurred and does not expect to incur liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any "pension plan"; and each
plan for which the Company would have any liability that is intended to be
qualified under section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, which could cause the loss of
such qualification.
(ee) Each of the Company and the Subsidiaries has accurately
prepared and timely filed all Federal, state, local, foreign and other tax
returns that are required to be filed by it and has paid or made provision for
the payment of all taxes, assessments, governmental or other similar charges,
including without limitation, all sales and use taxes and all taxes which the
10
Company and each of the Subsidiaries is obligated to withhold from amounts owing
to employees, creditors and third parties, with respect to the periods covered
by such tax returns (whether or not such amounts are shown as due on any tax
return) except any amounts the Company is contesting in good faith and the
failure to so pay would not have a Material Adverse Effect on the Company and
the Subsidiaries, taken as a whole. No deficiency assessment with respect to a
proposed adjustment of the Company's or any of the Subsidiaries' Federal, state,
local or foreign taxes is pending or, to the best of the Company's knowledge,
threatened which would reasonably be expected to have a Material Adverse Effect.
There is no material tax lien, whether imposed by any Federal, state, local,
foreign or other taxing authority, outstanding against the assets, properties or
business of the Company or any of the Subsidiaries.
(ff) Neither the Ordinary Shares, the Firm Shares nor the
Additional Shares are or will be at the Closing Date or any Additional Closing
Date subject to any transfer taxes, stamp duties or similar charges under the
laws of the British Virgin Islands.
(gg) All of the issued and outstanding shares of capital stock
of each of the Subsidiaries have been duly and validly authorized and issued and
are fully paid and non-assessable. Either the Company or its direct or indirect
Subsidiaries own all the issued share capital of each of the Company's
Subsidiaries and, either the Company, the Subsidiaries or their respective
agents, representatives or employees possess the share certificates representing
the outstanding capital stock of all the Subsidiaries, except (i) in cases where
the outstanding shares have been pledged pursuant to arrangements to secure
indebtedness or other obligations as disclosed in reports filed or submitted by
the Company with or to the Commission under the Act, the Exchange Act and the
Regulations, (ii) in cases where the Company possesses less than 100% of the
outstanding stock of the Subsidiary, or (iii) in countries where local law
requires a nominee shareholder or local resident to be the shareholder of record
or, in the case of bearer shares, to possess such shares.
Any certificate signed by or on behalf of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each Underwriter as
to the matters covered thereby.
2. Representations and Warranties of the Selling Shareholder. The
Selling Shareholder represents and warrants to, and agrees with, each of the
Underwriters as of the date hereof and as of the Closing Date and each
Additional Closing Date that:
(a) The Selling Shareholder has full right, power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions of the Selling Shareholder
contemplated by this Agreement, the Registration Statement and the Prospectus.
This Agreement and the transactions of the Selling Shareholder contemplated by
this Agreement, the Registration Statement and the Prospectus have been duly and
validly authorized by the Selling Shareholder. This Agreement has been duly and
validly executed and delivered by the Selling Shareholder and constitutes the
legal, valid and binding obligation of the Selling Shareholder.
(b) The Selling Shareholder has full right, power and
authority to execute and deliver a Custody Agreement and Power of Attorney
substantially in the form of
11
Exhibits B and C hereto (such Selling Shareholder's "Custody Agreement" and
"Power of Attorney", respectively), to perform its obligations thereunder and to
consummate the transactions of the Selling Shareholder contemplated thereby. The
Custody Agreement and Power of Attorney and the transactions contemplated
thereby have been duly and validly authorized by the Selling Shareholder. The
Custody Agreement and Power of Attorney have each been duly and validly executed
and delivered by the Selling Shareholder and constitute the legal, valid and
binding obligation of the Selling Shareholder, enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Counterparts of the Selling
Shareholder's Custody Agreement, duly signed by (i) the Company, as custodian
(in such capacity, the "Custodian") and (ii) Xxxxx X. XxxXxxxxxx, Xxxxx
Xxxxxxxxxxx and Xxxxxxxx X. Xxxxxxx, as the Selling Shareholder's
attorneys-in-fact (each, in such capacity, an "Attorney-In-Fact") have been
delivered to the Company and the Lead Manager on or prior to the date of this
Agreement.
(c) The Selling Shareholder agrees that the Shares and the
Additional Shares, if any, to be sold by the Selling Shareholder, whether or not
on deposit with the Custodian, are subject to the interests of the Underwriters,
that the arrangements made for such custody are to that extent irrevocable, and
that the obligations of the Selling Shareholder hereunder shall not be
terminated, except as provided in this Agreement or in the Custody Agreement and
Power of Attorney, by any act of the Selling Shareholder, by operation of law or
by the occurrence of any other event.
(d) The Selling Shareholder is the lawful owner of the Shares
and Additional Shares, if any, to be sold by the Selling Shareholder hereunder
and upon sale and delivery of, and payment for, such Shares and Additional
Shares as provided herein, the Selling Shareholder will convey to the
Underwriters good and marketable title to such Shares and Additional Shares,
free and clear of all voting trust arrangements, pledges, liens, encumbrances,
equities, claims and security interests whatsoever. Certificates for all of the
Shares to be sold by the Selling Shareholder pursuant to this Agreement, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures guaranteed, have
been placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Shares to the Underwriters pursuant to this
Agreement.
(e) The Selling Shareholder has and, on the Closing Date and
the Additional Closing Date, if any, will have, good and valid title to all of
the Shares and Additional Shares, if any, which are to be sold by the Selling
Shareholder pursuant to this Agreement on such date and the legal right and
power, and all authorizations and approvals required by law, to enter into this
Agreement and the applicable Custody Agreement and Power of Attorney, to sell,
transfer and deliver all of the Shares and Additional Shares, if any, which may
be sold by the Selling Shareholder pursuant to this Agreement and to comply with
its other obligations hereunder and thereunder, free and clear of all voting
trust arrangements, pledges, liens, encumbrances, equities, claims and security
interests to the extent created or suffered to exist by the Selling Shareholder.
12
(f) No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body or any third party is required for the
execution, delivery and performance by the Selling Shareholder of this Agreement
or the Custody Agreement and Power of Attorney or the consummation by the
Selling Shareholder of the transactions of the Selling Shareholder contemplated
herein or therein, except such as have been obtained under the Act and such as
may be required under the state securities laws or the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Selling
Shareholder Shares and the Selling Shareholder Additional Shares, if any, by the
Underwriters and the rules of the NASD.
(g) The execution, delivery and performance of this Agreement,
the Custody Agreement and Power of Attorney by the Selling Shareholder and the
consummation of the transactions contemplated herein and therein by the Selling
Shareholder will not (A) conflict with, result in a breach or violation of, or
constitute a default (or an event that with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Selling
Shareholder pursuant to any law, statute, rule or regulation or the terms of any
indenture or other agreement or instrument to which the Selling Shareholder is a
party or bound, or to which any of the property or assets of the Selling
Shareholder is subject, or (B) result in any violation of the provisions of any
memorandum or articles of association, charter or by-laws or certificate of
formation, trust agreement, partnership agreement, articles of partnership or
other organizational documents, as applicable, of the Selling Shareholder, or
any judgment, order, decree, statute, rule or regulation applicable to the
Selling Shareholder of any court or any public or governmental or regulatory
agency or body having jurisdiction over the Selling Shareholder.
(h) The Selling Shareholder does not have any registration or
other similar rights to have any equity or debt securities registered for sale
by the Company under the Registration Statement or included in the offering of
the Shares and the Additional Shares, if any, except for such rights as have
been waived or which are described in the Prospectus (and which have been
complied with).
(i) The Selling Shareholder does not have, or has waived prior
to the date hereof, any preemptive right, co-sale right or right of first
refusal or other similar right to purchase any of the Shares that are to be sold
by the Company to the Underwriters pursuant to this Agreement; and the Selling
Shareholder does not own any warrants, options or similar rights to acquire, and
does not have any right or arrangement to acquire, any capital stock, rights,
warrants, options or other securities from the Company, other than those
described in the Registration Statement and the Prospectus.
(j) Except as disclosed in the Prospectus and other than this
Agreement, there are no contracts, agreements or understandings between the
Selling Shareholder and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with the transactions contemplated by this Agreement,
the Registration Statement and the Prospectus.
(k) All information furnished by or on behalf of the Selling
Shareholder in writing for use in the Registration Statement and the Prospectus
is true, correct,
13
and complete in all material respects and does not and will not contain any
untrue statement of a material fact; provided that this representation and
warranty is made only as to information contained in the Registration Statement
or the Prospectus under the caption "Selling Shareholder" and relating to the
Selling Shareholder.
(l) The Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Ordinary Shares to facilitate the sale or resale of the Shares or Additional
Shares, if any.
(m) The Selling Shareholder has not distributed and will not
distribute, prior to the later of the Additional Closing Date, if any, and the
completion of the Underwriters' distribution of the Shares, any offering
material in connection with the offering and sale of the Shares and the
Additional Shares, if any, by the Selling Shareholder other than a preliminary
prospectus, the Prospectus or the Registration Statement.
(n) The Selling Shareholder has reviewed and is familiar with
the Registration Statement, the Prospectus and the information incorporated by
reference therein and (i) has no knowledge of any material adverse information
with regard to the Company or the Subsidiaries which is not disclosed in the
Registration Statement, the Prospectus or any document incorporated therein by
reference, (ii) has no knowledge of any misstatement of a material fact or
failure to state a material fact necessary to make the statements in the
Prospectus, in light of the circumstances under which they were made, not
misleading, and (iii) is not prompted to sell the Shares and the Additional
Shares, if any, to be sold by the Selling Shareholder by any information
concerning the Company or any of the Subsidiaries which is not set forth in the
Registration Statement, the Prospectus or any document incorporated therein by
reference.
(o) The representations and warranties of the Selling
Shareholder in its Custody Agreement and Power of Attorney are, and on the
Closing Date and Additional Closing Date, if any, will be, true and correct.
Any certificate signed by or on behalf of the Selling
Shareholder and delivered to the Representatives or to counsel for the
Underwriters shall be deemed to be a representation and warranty by the Selling
Shareholder to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, (i) the Company agrees to sell 4,000,000 of the Firm Shares to the
Underwriters, (ii) the Selling Shareholder agrees to sell 1,000,000 of the Firm
Shares to the Underwriters and (iii) the Underwriters, severally and not
jointly, agree to purchase from the Company and the Selling Shareholder, at a
purchase price per share of $__________, the number of Firm Shares set forth
opposite the respective names of the Underwriters in Schedule I hereto plus any
additional
14
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the office of Bear, Xxxxxxx & Co.
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by Bear Xxxxxxx and the Company, at 10:00 A.M., New York
time, on the third or fourth business day (as permitted under Rule 15c6-1 under
the Exchange Act) (unless postponed in accordance with the provisions of Section
10 hereof) following the date of the effectiveness of the Registration Statement
(or, if the Company has elected to rely upon Rule 430A of the Regulations, the
third or fourth business day (as permitted under Rule 15c6-1 under the Exchange
Act) after the determination of the public offering price of the Shares), or
such other time not later than ten business days after such date as shall be
agreed upon by Bear Xxxxxxx and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment of the purchase price
for the Firm Shares shall be made by wire transfer in same day funds to or as
directed by the Company and the Custodian (pursuant to the Selling Shareholder's
Custody Agreement and Power of Attorney), as the case may be, upon delivery of
certificates for the Firm Shares to Bear Xxxxxxx through the facilities of The
Depository Trust Company for the respective accounts of the several
Underwriters. The Selling Shareholder hereby agrees that (i) it will pay all
stock transfer taxes, stamp duties and other similar taxes, if any, payable upon
the sale or delivery of the Firm Shares to be sold by the Selling Shareholder to
the several Underwriters, or otherwise in connection with the performance of the
Selling Shareholder's obligations hereunder, and (ii) the Custodian is
authorized to deduct from such payment any such amounts from the proceeds to the
Selling Shareholder hereunder and to hold such amounts for the account of the
Selling Shareholder with the Custodian under the Custody Agreement and Power of
Attorney. Certificates for the Firm Shares shall be registered in such name or
names and shall be in such denominations as Bear Xxxxxxx may request at least
two business days before the Closing Date. The Company and the Custodian will
permit Bear Xxxxxxx to examine and package such certificates for delivery at
least one business day prior to the Closing Date.
(c) In addition, on the basis of the representations,
warranties, covenants and agreements herein contained, but subject to the terms
and conditions herein set forth, (i) the Company hereby grants to the
Underwriters, acting severally and not jointly, the option to purchase up to
600,000 Additional Shares and (ii) the Selling Shareholder hereby grants to the
Underwriters, acting severally and not jointly, the option to purchase up to
150,000 Additional Shares, both at the same purchase price per share to be paid
by the Underwriters to the Company and the Selling Shareholder for the Firm
Shares as set forth in this Section 3, for the sole purpose of covering
over-allotments in the sale of Firm Shares. This option may be exercised at any
time and from time to time, in whole or in part on one or more occasions, on or
before the thirtieth day following the date of the Prospectus, by written notice
by Bear Xxxxxxx to the Company and the Selling Shareholder. If the option is
exercised in part, the Company and the Selling Shareholder will sell the amount
that is proportional to the total number of Additional Shares as provided for in
the next paragraph. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised and the date and
time, as reasonably determined by Bear Xxxxxxx, when the Additional Shares are
to be delivered (any such date and time being herein sometimes referred to as
the "Additional Closing Date"); provided, however, that the Additional Closing
Date shall not be earlier than the Closing Date nor earlier than the
15
second business day after the date on which the option shall have been exercised
nor later than the eighth business day after the date on which the option shall
have been exercised (unless such time and date are postponed in accordance with
the provisions of Section 10 or 11 hereof). Certificates for the Additional
Shares shall be registered in such name or names and in such authorized
denominations as you may request in writing at least two business days prior to
the Additional Closing Date. The Company and the Custodian, on behalf of the
Selling Shareholder, shall permit you to examine and package such certificates
for delivery at least one business day prior to the Additional Closing Date.
Upon any exercise of the option as to all or any portion of
the Additional Shares, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Additional Shares then being
purchased which the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 10 hereof) bears to the total number of Firm Shares that the
Underwriters have agreed to purchase hereunder, subject, however, to such
adjustments to eliminate any fractional shares as Bear Xxxxxxx in its sole
discretion shall make. The number of (i) Company Additional Shares to be sold by
the Company shall be the product of (x) the aggregate number of Additional
Shares being purchased and (y) the ratio which results from taking the number of
Company Shares divided by the total number of Firm Shares, and (ii) the Selling
Shareholder Additional Shares to be sold by the Selling Shareholder shall be the
product of (x) the aggregate number of Additional Shares being purchased and (y)
the ratio which results from taking the number of Selling Shareholder Shares
divided by the total number of Firm Shares, subject in each case, however, to
such adjustments to eliminate any fractional shares as Bear Xxxxxxx in its sole
discretion shall make.
(d) Payment of the purchase price for the Additional Shares to
be sold by the Company shall be made by wire transfer in same day funds to or as
directed by the Company upon delivery of certificates for the Additional Shares
to Bear Xxxxxxx through the facilities of The Depository Trust Company for the
respective accounts of the several Underwriters. Certificates for the Additional
Shares shall be registered in such name or names and shall be in such
denominations as Bear Xxxxxxx may request at least two business days before the
Additional Closing Date. Payment for the Additional Shares to be sold by the
Selling Shareholder shall be made to or upon the order of the Selling
Shareholder of the purchase price by wire transfer in Federal (same day) funds
to or as directed by the Selling Shareholder or the Custodian at the offices of
Bear Xxxxxxx, or such other location as may be mutually acceptable, upon
delivery of the certificates for the Additional Shares to Bear Xxxxxxx for the
respective accounts of the Underwriters. The Selling Shareholder hereby agrees
that (i) it will pay all stock transfer taxes, stamp duties and other similar
taxes, if any, payable upon the sale or delivery of the Additional Shares to be
sold by the Selling Shareholder to the several Underwriters, or otherwise in
connection with the performance of the Selling Shareholder's obligations
hereunder and (ii) the Custodian is authorized to deduct from such payment any
such amounts from the proceeds to the Selling Shareholder hereunder and to hold
such amounts for the account of the Selling Shareholder with the Custodian under
the Custody Agreement and Power of Attorney. The Company and the Custodian will
permit Bear Xxxxxxx to examine and package such certificates for delivery at
least one business day prior to the Additional Closing Date.
16
4. Offering. Upon your authorization of the release of the Firm
Shares, the Underwriters propose to offer the Shares for sale to the public upon
the terms set forth in the Prospectus.
5. Covenants of Company and Selling Shareholder.
(a) Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
(i) If the Registration Statement has not yet been
declared effective, the Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective as
promptly as possible, and if Rule 430A is used or the filing of the
Prospectus is otherwise required under Rule 424(b) or Rule 434, the
Company will file the Prospectus (properly completed if Rule 430A has been
used) pursuant to Rule 424(b) or Rule 434 within the prescribed time
period and will provide evidence satisfactory to you of such timely
filing. If the Company elects to rely on Rule 434, the Company will
prepare and file a term sheet that complies with the requirements of Rule
434.
The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (A) when the Registration Statement
and any amendments thereto become effective, (B) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (C) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, (D) of the mailing or the delivery to
the Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, including but not limited to Rule 462(b) under the
Act, (E) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of the initiation, or the threatening, of any proceedings therefor,
(F) of the receipt of any comments from the Commission, and (G) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose. If the Commission shall propose
or enter a stop order at any time, the Company will make every reasonable effort
to prevent the issuance of any such stop order and, if issued, to obtain the
lifting of such order as soon as possible. The Company will not file any
amendment to the Registration Statement or any amendment of or supplement to the
Prospectus (including the prospectus required to be filed pursuant to Rule
424(b) or Rule 434) that differs from the prospectus on file at the time of the
effectiveness of the Registration Statement after the effective date of the
Registration Statement to which you shall object in writing after being timely
furnished a reasonable time in advance a copy thereof.
(ii) The Company shall comply with the Act and the
Exchange Act to permit completion of the distribution as contemplated in
this Agreement, the Registration Statement and the Prospectus. If at any
time when a prospectus relating to the Shares is required to be delivered
under the Act in connection with the sales of Shares, any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would, in the judgment of the Underwriters or the Company,
17
include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary at any time to
amend or supplement, or to file any document incorporated by reference in,
the Prospectus or Registration Statement or any amendment thereof or
supplement thereto to comply with the Act, the Exchange Act or the
Regulations, the Company will notify you promptly and prepare and file
with the Commission an appropriate amendment or supplement (in form and
substance satisfactory to you) which will correct such statement or
omission and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(iii) The Company will promptly deliver to you two
signed copies of the Registration Statement, including exhibits and all
amendments thereto, and the Company will promptly deliver to each of the
Underwriters such number of copies of any preliminary prospectus, the
Prospectus, the Registration Statement, and all amendments of and
supplements to such documents (including all amendments or supplements
incorporated or deemed to be incorporated by reference), if any, and as
you may reasonably request.
(iv) The Company consents to the use and delivery of the
preliminary prospectus by the Underwriters in accordance with Rule 430 and
section 5(b) of the Act.
(v) The Company will use its reasonable best efforts in
cooperation with you, at or prior to the time of effectiveness of the
Registration Statement, to qualify the Shares for offering and sale under
the securities laws relating to the offering or sale of the Shares of such
jurisdictions as you may reasonably designate and to maintain such
qualification in effect for so long as required for the distribution
thereof; except that in no event shall the Company be obligated in
connection therewith to (1) qualify as a foreign corporation, (2) execute
a general consent to service of process, or (3) become subject to service
of process in suits or taxation in any jurisdiction in which it is not now
so subject.
(vi) The Company will make generally available (within
the meaning of section 11(a) of the Act) to its security holders and to
you as soon as practicable, but not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) of
the Regulations), an earnings statement of the Company and the
Subsidiaries (which need not be audited) complying with section 11(a) of
the Act and the Regulations (including, at the option of the Company, Rule
158 thereof).
(vii) During the period of 90 days from the date of the
Prospectus, without the prior written consent of Bear Xxxxxxx, the Company
(A) will not, directly or indirectly, issue, offer, sell, agree to issue,
solicit offers to purchase, grant any call option, warrant or other right
to purchase, purchase any put option or other right to sell, pledge,
borrow or otherwise dispose of any Relevant Security, or make any
announcement of any of the foregoing, (B) will not establish or increase
any "put
18
equivalent position" or liquidate or decrease any "call equivalent
position" (in each case within the meaning of section 16 of the Exchange
Act and the regulations promulgated thereunder) with respect to any
Relevant Security, and (C) will not otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another,
in whole or in part, any economic consequence of ownership of a Relevant
Security, whether or not such transaction is to be settled by delivery of
Relevant Securities, other securities, cash or other consideration; and
the Company will obtain an undertaking of each of the persons and entities
listed on Schedule II attached hereto not to engage in any of the
aforementioned transactions on their own behalf; other than the offer and
sale by the Company and the Selling Shareholder of Shares as contemplated
by this Agreement and the offer, sale, agreement to issue, solicitation of
offers, the issuance of Ordinary Shares, options or other rights to
purchase Ordinary Shares upon: (A) the conversion or exchange of
convertible or exchangeable securities outstanding on the date hereof; (B)
the exercise of currently outstanding options; (C) the exercise of
currently outstanding warrants; (D) the grant and exercise of options
under, or the issuance and sale of shares pursuant to, stock option plans,
share incentive trusts and employee purchase plans in effect on the date
hereof; (E) the satisfaction of earn-out payments or other contingent
payment obligations pursuant to the terms of acquisitions completed prior
to the date hereof; and (F) in connection with strategic relationships and
acquisitions of businesses, technologies or products.
(viii) During a period of three years from the effective
date of the Registration Statement, the Company will furnish to you, to
the extent not publicly filed with the Commission, copies of (i) all
reports to its shareholders; and (ii) all reports, financial statements
and proxy or information statements filed by the Company with the
Commission or any national securities exchange or the Nasdaq National
Market.
(ix) The Company will apply the proceeds from the sale
of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(x) The Company will use its reasonable best efforts to
list the Shares for quotation on the Nasdaq National Market and maintain
the listing of the Shares on the Nasdaq National Market.
(xi) The Company, during the period when the Prospectus
is required to be delivered under the Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the Act
and sections 13, 14 or 15 of the Exchange Act within the time periods
required by the Exchange Act and the rules and regulations thereunder.
(b) Covenants of the Selling Shareholder. The Selling
Shareholder covenants and agrees with each Underwriter:
(i) To deliver to the Representatives prior to the
Closing Date, a properly completed and executed United States Treasury
Department Form W-8 which may be replaced by any other applicable form or
statement specified by Treasury Department regulations in lieu thereof;
19
(ii) To notify promptly the Company and the
Representatives if, at any time prior to the date on which the
distribution of the Shares as contemplated herein and in the Prospectus
has been completed, as determined by the Representatives, the Selling
Shareholder has knowledge of the occurrence of any event as a result of
which the Prospectus or the Registration Statement, in each case as then
amended or supplemented, would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(iii) To cooperate to the extent necessary to cause the
Registration Statement or any post-effective amendment thereto to become
effective at the earliest possible time and to do and perform all things
to be done and performed under this Agreement prior to the Closing Date
and the Additional Closing Date, if any, and to satisfy all conditions
precedent of the Selling Shareholder to the delivery of the Shares to be
sold by the Selling Shareholder pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes,
stamp duties and other similar taxes with respect to the Shares, if any,
to be sold by the Selling Shareholder; and
(v) To deliver to Bear Xxxxxxx on or prior to the date
of this Agreement a lock-up agreement executed by the Selling Shareholder
referenced in Section 7(i) hereof.
6. Payment of Expenses. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, and subject
to Section 13(d) below, the Company hereby agrees to pay all costs and expenses
incident to the performance of the obligations of the Company hereunder,
including those in connection with (i) the fees and expenses of the Company's
counsel and accountants and the printing, duplicating, filing and distribution
of the Registration Statement, as originally filed and all amendments thereof
(including all exhibits thereto), any preliminary prospectus, the Prospectus and
any amendments or supplements thereto (including, without limitation, fees and
expenses of the Company's accountants and counsel), (ii) the cost of producing
the underwriting documents (including this Agreement and any agreement among
Underwriters) and all other documents related to the public offering of the
Shares, (iii) the issuance, transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iv) the
qualification of the Shares under state or foreign securities or Blue Sky laws,
including the costs of printing and mailing a preliminary and final Blue Sky
survey and the fees and expenses of counsel for the Underwriters in connection
with such qualification and in connection with any Blue Sky survey, (v)
quotation of the Shares on the Nasdaq National Market, (vi) filing fees of the
Commission and the NASD and the fees and disbursements of counsel for the
Underwriters in connection with any required review by the NASD, (vii) the cost
of printing certificates representing the Shares, (viii) the cost and charges of
any transfer agent or registrar, (ix) the fees of the Custodian and other fees
and expenses related to the offering of Shares by the Selling Shareholder, and
(x) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section 6.
It is understood, however, that except as provided in this Section, and Sections
8, 9 and 13 hereof, the Underwriters will pay all
20
of their own costs and expenses, including the fees of their counsel and stock
transfer taxes on resale by them of any of the Shares.
The Selling Shareholder will pay all fees and expenses related to the
offering of the Shares to be sold by it, including (i) the fees and
disbursements of its counsel, if any, and (ii) any applicable stock transfer or
other taxes related to the offering of its Shares. Notwithstanding the
foregoing, nothing herein shall affect any agreement that the Company and the
Selling Shareholder may make for the sharing or allocation of such costs and
expenses.
7. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Selling Shareholder herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 7,
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Pillsbury Winthrop LLP ("Underwriters' Counsel") pursuant to this
Section 7 of any misstatement or omission, to the performance by the Company of
its obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective and
all necessary approvals from the Nasdaq National Market shall have been received
not later than 5:30 P.M., New York time, on the date of this Agreement, or at
such later time and date as shall have been consented to in writing by Bear
Xxxxxxx; if the Company shall have elected to rely upon Rule 430A or Rule 434 of
the Regulations, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 5(a) hereof; and, at or prior to the
Closing Date no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, United States counsel for the Company,
dated the Closing Date and addressed to the Underwriters, in the form attached
hereto as Annex A. As used in said opinion, the term "U.S. Principal Subsidiary"
shall mean each of UTi, United States, Inc., a New York corporation, and
Union-Transport (U.S.) Holdings, Inc., a Delaware corporation.
(c) At the Closing Date, you shall have received the opinion,
dated as of the Closing Date, of Xxxxxx, Westwood & Riegels, British Virgin
Islands counsel for the Company, addressed to the Underwriters, in the form
attached hereto as Annex B. As used in said opinion, the term "BVI Principal
Subsidiaries" shall mean each of UTi Networks Inc., a British Virgin Islands
corporation, UTi International Inc., a British Virgin Islands corporation, and
Xxxxxxx Company Ltd., a British Virgin Islands corporation.
(d) At the Closing Date, you shall have received the opinions,
dated as the Closing Date, of foreign counsel for the Company, addressed to the
Underwriters, concerning each Foreign Principal Subsidiary (as defined below),
in the form attached hereto as Annex C. As used in said opinion, the term
"Foreign Principal Subsidiary" shall mean Union Air Transport
21
(NA) Holdings NV (Netherlands Antilles), a Netherlands Antilles corporation,
Union Air Transport (NA) NV, a Netherlands Antilles corporation, and UTi
(Netherlands) Holdings BV, a Netherlands corporation.
(e) At the Closing Date, you shall have received the opinion,
dated as of the Closing Date, of Xxxxxx, Westwood & Riegels, British Virgin
Islands counsel for the Selling Shareholder, addressed to the Underwriters, in
the form attached hereto as Annex D.
(f) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be reasonably
satisfactory in form and substance to Bear Xxxxxxx and to Underwriters' Counsel,
and the Underwriters shall have received from said Underwriters' Counsel a
favorable opinion, dated as of the Closing Date, with respect to the issuance
and sale of the Shares, the Registration Statement and the Prospectus and such
other related matters as Bear Xxxxxxx may reasonably require, and the Company
shall have furnished to Underwriters' Counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(g) At the Closing Date, you shall have received a certificate
of the chief executive officer and chief financial officer of the Company, dated
the Closing Date, to the effect that (i) the condition set forth in subsection
(a) of this Section 7 has been satisfied, (ii) as of the date hereof and as of
the Closing Date, the representations and warranties of the Company set forth in
Section 1 hereof are accurate, (iii) as of the Closing Date all agreements,
conditions and obligations of the Company to be performed or complied with
hereunder on or prior thereto have been duly performed or complied with, (iv)
subsequent to the respective dates as of which information is given in, or
incorporated into, the Registration Statement and the Prospectus, the Company
and the Subsidiaries (taken as a whole) have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding and (v)
subsequent to the respective dates as of which information is given in, or
incorporated into, the Registration Statement and the Prospectus there has not
been any Material Adverse Change of the Company and the Subsidiaries, taken as a
whole, except as described in or contemplated by the Prospectus.
(h) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter from Deloitte & Touche LLP, independent
certified public accountants for the Company, dated, respectively, as of the
date of this Agreement and as of the Closing Date, addressed to the Company and
the Underwriters and in form and substance satisfactory to you and Underwriters'
Counsel.
(i) Bear Xxxxxxx shall have received from each person or
entity listed on Schedule II hereto a lock-up agreement in substantially the
form attached hereto as Annex E.
(j) At the Closing Date, the Shares shall have been approved
for quotation on the Nasdaq National Market.
(k) At the Closing Date, you shall have received a certificate
of an authorized representative of the Selling Shareholder, dated the Closing
Date, to the effect that, as
22
of the date hereof and as of the Closing Date, the representations and
warranties of the Selling Shareholder set forth in Section 2 hereof are accurate
and that the Selling Shareholder has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior
thereto.
(l) On or prior to the Closing Date, you shall have received a
properly completed and executed United States Treasury Department Form W-8 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof) from the Selling Shareholder.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to Bear Xxxxxxx or to
Underwriters' Counsel pursuant to this Section 7 shall not be in all material
respects reasonably satisfactory in form and substance to Bear Xxxxxxx and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by Bear Xxxxxxx at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
canceled by Bear Xxxxxxx at, or at any time prior to, the Additional Closing
Date. Notice of such cancellation shall be given to the Company in writing, or
by telephone, telecopier, telex or telegraph, confirmed in writing.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of section 15 of the Act or section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (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 Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, 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;
provided, however, that the Company will not be liable in any such case to the
extent but only to the extent that any such loss, liability, claim, damage or
expense 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 Bear Xxxxxxx expressly for use therein (the
parties hereby agreeing that such information provided by or on behalf of any
Underwriter through Bear Xxxxxxx consists solely of the material referred to in
the penultimate sentence of Section 1(b) hereof); provided, further, that this
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, liabilities, claims, damages or expenses purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
23
supplemented, provided by the Company to the several Underwriters in the
requisite quantity and on a timely basis to permit proper delivery on or prior
to the Closing Date) was not sent or given by or on behalf of such Underwriter
to such person, if such is required by law, at or prior to the written
confirmation of the sale of such Shares to such person and if the Prospectus (as
so amended or supplemented) would have corrected the defect giving rise to such
loss, liability, claim, damage or expense. This indemnity agreement will be in
addition to any liability which the Company may otherwise have including under
this Agreement.
(b) The Selling Shareholder shall indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of section 15 of the Act or section 20(a) of the Exchange Act
against any and all losses, liabilities, claims, damages and expenses whatsoever
as incurred (including but not limited to reasonable attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever and any
and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact relating to the
Selling Shareholder contained in the Registration Statement for the registration
of the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact relating to the Selling Shareholder
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Selling Shareholder will not be liable
in any such case to the extent but only to the extent that any such loss,
liability, claim, damage or expense 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 Bear Xxxxxxx
expressly for use therein (the parties hereby agreeing that such information
provided by or on behalf of any Underwriter through Bear Xxxxxxx consists solely
of the material referred to in the penultimate sentence of Section 1(b) hereof);
provided, further, that this 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, liabilities, claims, damages or expenses
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented, provided by the Company to the
several Underwriters in the requisite quantity and on a timely basis to permit
proper delivery on or prior to the Closing Date) was not sent or given by or on
behalf of such Underwriter to such person, if such is required by law, at or
prior to the written confirmation of the sale of such Shares to such person and
if the Prospectus (as so amended or supplemented) would have corrected the
defect giving rise to such loss, liability, claim, damage or expense; provided,
however, that in no case shall the Selling Shareholder be liable or responsible
for any amount in excess of the proceeds (net of the underwriting discount but
before deducting other expenses) applicable to the Shares sold by the Selling
Shareholder pursuant to the transactions contemplated hereby. This indemnity
agreement will be in addition to any liability that Selling Shareholder may
otherwise have including under this Agreement.
(c) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, the Selling Shareholder, each of the
directors of the Selling
24
Shareholder, each of the directors of the Company, each of the officers of the
Company who shall have signed the Registration Statement, and each other person,
if any, who controls the Company or the Selling Shareholder within the meaning
of section 15 of the Act or section 20(a) of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (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, as originally filed or any amendment thereof, or any related
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, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense 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 you expressly for use therein; provided,
however, that in no case shall any Underwriter be liable or responsible for any
amount in excess of the underwriting discount applicable to the Shares purchased
by such Underwriter hereunder. This indemnity will be in addition to any
liability which any Underwriter may otherwise have including under this
Agreement.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the commencement thereof (but
the failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8 to the extent it is not
materially prejudiced as a result thereof). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any
25
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
9. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 8 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company, the
Selling Shareholder and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company, the Selling Shareholder, any contribution received by the Company
and/or the Selling Shareholder from persons, other than the Underwriters, who
may also be liable for contribution, including persons who control the Company
and/or the Selling Shareholder within the meaning of section 15 of the Act or
section 20(a) of the Exchange Act, officers of the Company who signed the
Registration Statement and directors of the Company) as incurred to which the
Company, the Selling Shareholder 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 and the Selling Shareholder, on the one hand, and the
Underwriters, on the other hand, from the offering of the Shares or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 8 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company, the Selling Shareholder and the Underwriters, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the Selling Shareholder and the
Underwriters shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company or the Selling Shareholder
and (y) the underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of each of the Company, the Selling Shareholder
and the Underwriters, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Shareholder or the Underwriters, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Shareholder and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 9, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess
26
of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder, and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 9 and the
preceding sentence, no Underwriter shall 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. For purposes of this Section 9, each person, if any, who controls an
Underwriter within the meaning of section 15 of the Act or section 20(a) of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company or the Selling Shareholder within
the meaning of section 15 of the Act or section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company and the Selling Shareholder shall have the same rights
to contribution as the Company and any Selling Shareholder, as applicable,
subject in each case to clauses (i) and (ii) of this Section 9. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 9 or otherwise. The obligations of the Underwriters to contribute
pursuant to this Section 9 are several in proportion to the respective number of
Shares to be purchased by each of the Underwriters hereunder and not joint. No
party shall be liable for contribution with respect to any action or claim
settled without its consent; provided, however, that such consent was not
unreasonably withheld.
10. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default
in its or their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or Additional Shares with respect to which
such default relates do not (after giving effect to arrangements, if any, made
by you pursuant to subsection (b) below) exceed in the aggregate 10% of the
number of Firm Shares or Additional Shares, then such Firm Shares or Additional
Shares to which the default relates shall be purchased by the non-defaulting
Underwriters in proportion to the respective proportions which the numbers of
Firm Shares set forth opposite their respective names in Schedule I hereto bear
to the aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters.
(b) In the event that such default relates to more
than 10% of the Firm Shares or Additional Shares, as the case may be, you may in
your discretion arrange for yourself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase such
Firm Shares or Additional Shares, as the case may be, to which such default
relates on the terms contained herein. In the event that within 5 calendar days
after such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 10, this Agreement (or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company and the Selling Shareholder to sell the Additional Shares) shall
27
thereupon terminate, without liability on the part of the Company or the Selling
Shareholder with respect thereto (except in each case as provided in Sections 6,
8(a) and 9 hereof) or the Underwriters, but nothing in this Agreement shall
relieve a defaulting Underwriter or Underwriters of its or their liability, if
any, to the other Underwriters and the Company and the Selling Shareholder for
damages occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional
Shares to which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or
Additional Closing Date, as the case may be, for a period not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in the opinion
of Underwriters' Counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 10 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares and Additional Shares.
11. Default by Selling Shareholder.
(a) If the Selling Shareholder shall fail to sell and
deliver any Shares that the Selling Shareholder is obligated to sell hereunder
as and when so obligated, then the Underwriters may, at the option of the
Representatives, by notice from the Representatives to the Company, terminate
this Agreement without any liability on the fault of any non-defaulting party
except that the provisions of Sections 1, 2, 6, 8, 9, 12, 13 and 17 hereof shall
remain in full force and effect. No action taken pursuant to this Section 11
shall relieve the Selling Shareholder so defaulting from liability, if any, in
respect of such default.
(b) In the event that the Selling Shareholder fails
to sell and deliver the number of Shares that the Selling Shareholder is
obligated to sell hereunder as and when so obligated and the Company and
Underwriters agree to proceed with the Offering, then the Underwriters, Bear
Xxxxxxx or the Company shall have the right, in each case by notice to the
other, to postpone the Closing Date or Additional Closing Date, as the case may
be, for a period not exceeding five business days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus or in any other documents and arrangements, and the Company agrees to
file promptly any amendment or supplement to the Registration Statement or the
Prospectus which, in the opinion of Underwriters' Counsel, may thereby be made
necessary or advisable; and in no event shall the Company be obligated to
increase the number of Shares it is required to sell hereunder.
12. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters and
the Company contained in this Agreement, including the agreements contained in
Section 6, the indemnity agreements contained in Section 8 and the contribution
agreements contained in Section 9, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company, or the
Selling Shareholder, any of their officers and directors or any controlling
person thereof, and shall
28
survive delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
6, 8, 9, 13(d) and 17 hereof shall survive the termination of this Agreement,
including termination pursuant to Section 10, 11 or 13 hereof.
13. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the
later of when (i) you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. If either the public offering price or the purchase price per Share
has not been agreed upon prior to 5:00 P.M., New York time, on the fifth full
business day after the Registration Statement shall have become effective, this
Agreement shall thereupon terminate without liability to the Company, the
Selling Shareholder or the Underwriters except as herein expressly provided.
Until this Agreement becomes effective as aforesaid, it may be terminated by the
Company by notifying Bear Xxxxxxx or by Bear Xxxxxxx notifying the Company.
Notwithstanding the foregoing, the provisions of this Section 13 and of Sections
1, 2, 6, 8 and 17 hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this
Agreement, by notice to the Company and the Selling Shareholder, at any time
prior to the Closing Date or the obligations of the Underwriters to purchase the
Additional Shares at any time prior to the Additional Closing Date, as the case
may be, if (A) any domestic or international event or act or occurrence has
materially disrupted, or in your opinion will in the immediate future materially
disrupt, the market for the Company's securities or securities in general; or
(B) if trading on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market, as the case may be, shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market by the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market,
as the case may be, or by order of the Commission or any other governmental
authority having jurisdiction; or (C) if a banking moratorium has been declared
by New York or California or federal authorities or if any material disruption
in commercial banking or securities settlement or clearance services shall have
occurred; or (D) (i) if the United States becomes engaged in hostilities or
there is an escalation of hostilities or acts of terrorism involving the United
States or there is a declaration of a national emergency or war by the United
States or (ii) if there shall have been any other calamity or crisis or other
similar change in political, financial or economic conditions such that the
effect of any such event in (i) or (ii) as in your judgment makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Additional Shares, as the case may be, on the terms
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this
Section 13 shall be by telephone, telecopier, telex, or telegraph, confirmed in
writing.
(d) If this Agreement shall be terminated pursuant to
any of the provisions hereof (otherwise than pursuant to (i) notification by you
as provided by Section 13(a) hereof or (ii) Section 10(b) hereof), or if the
sale of the Shares provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth herein is not satisfied or
29
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, the Company
will, subject to demand by you, reimburse the Underwriters for all out-of-pocket
expenses (including the fees and expenses of their counsel), incurred by the
Underwriters in connection herewith. If this Agreement shall be terminated
pursuant to Section 13(b) hereof, then no party shall have any liability
hereunder to any other party hereto except for the Company's obligation,
pursuant to Section 6 hereof, to pay all out-of-pocket expenses of the
Underwriters incurred in connection with this Agreement
14. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and if sent to any
Underwriter, shall be mailed, delivered, or telecopied, telexed or telegraphed
and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxx, with a copy to
Underwriters' Counsel at Pillsbury Winthrop LLP, 00 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxx, Esq.; if sent to the
Company or the Selling Shareholder, shall be mailed, delivered, or telecopied,
telexed or telegraphed and confirmed in writing to the Company, c/o UTi, United
States, Inc., 00000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxxxxxx, XX 00000,
Attention: Chief Executive Officer, with a copy to Paul, Hastings, Xxxxxxxx &
Xxxxxx LLP, 17th Floor, 000 Xxxx Xxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx
00000-0000, Attention: Xxxxxxx X. Xxxxx, Esq.
15. Parties. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Underwriters, the Company, the Selling
Shareholder and the controlling persons, directors, officers, employees and
agents referred to in Sections 8 and 9 hereof, and their respective successors
and assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Shares from any of
the Underwriters.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
17. Appointment of Agent for Service. The Company and the
Selling Shareholder, by the execution and delivery of this Agreement, agree that
service of process may be made at the principal office of CT Corporation System,
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in any suit or proceeding against
the Company, or the Selling Shareholder, as the case may be, instituted by any
Underwriter or by any person controlling any Underwriter based on or arising
under this Agreement in any United States Federal District Court or State court
in the State of New York, County of New York, and expressly accepts the
nonexclusive jurisdiction of any such court in respect of any such suit or
proceeding. The Company further and the Selling Shareholder, by the execution
and delivery of this Agreement, irrevocably designates and appoints CT
Corporation System in the County, City and State of New York, United States of
America, as the authorized agent of the Company and the Selling Shareholder upon
whom process may be served in any such suit or proceeding, it being understood
that the designation and appointment of CT Corporation System as such authorized
agent shall become effective immediately without any further action on the part
of the Company. Each of the Company and the Selling Shareholder represents to
each Underwriter that it has notified CT Corporation
30
System of such designation and appointment and that CT Corporation System has
accepted the same in writing. Each of the Company and the Selling Shareholder
further agrees that, to the extent permitted by law, service of process upon CT
Corporation and written notice of said service to the Company or the Selling
Shareholder, as the case may be, mailed by first class airmail or delivered to
it at the address specified in Section 14 shall be deemed in every respect
effective service of process upon the Company or the Selling Shareholder, as the
case may be, in any such suit or proceeding. Each of the Company and the Selling
Shareholder further agrees to take any and all action, including the execution
and filing of all such instruments and documents, as may be necessary to
continue such designation and appointment in full force and effect for five
years from the Closing Time.
18. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of
a signed counterpart of this Agreement by facsimile transmission shall
constitute valid and sufficient delivery thereof.
19. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
20. Time is of the Essence. Time shall be of the essence of
this Agreement. As used herein, the term "business day" shall mean any day when
the Commission's office in Washington, D.C., is open for business.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
31
If the foregoing correctly sets forth the understanding among you, the
Company, and the Selling Shareholder, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
UTi WORLDWIDE INC.
By:
-------------------------------------
Xxxxx X. XxxXxxxxxx
Chief Executive Officer
"Selling Shareholder"
PTR HOLDINGS INC.
By:
-------------------------------------
Name:
-------------------------------------
Title: Authorized Signatory
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
X.X. XXXXXX SECURITIES INC.
BB&T CAPITAL MARKETS, A DIVISION OF XXXXX &
XXXXXXXXXXXX, INC.
XXXXXX FRERES & CO. LLC
By:
-------------------------------------
Bear, Xxxxxxx & Co. Inc.
On behalf of themselves and the other Underwriters
named in Schedule I hereto.
32
SCHEDULE I
Number of Additional Shares to be
Number of Firm Shares to be Purchased if Maximum Option
Name of Underwriter Purchased Exercised
------------------- --------- ---------
Bear, Xxxxxxx & Co. Inc.
X.X. Xxxxxx Securities Inc.
BB&T Capital Markets, a division of Xxxxx &
Xxxxxxxxxxxx, Inc.
Lazard Freres & Co. LLC
TOTAL 5,000,000 750,000
SCHEDULE II
SHAREHOLDERS SUBJECT TO LOCK-UP
United Service Technologies Limited
Union-Transport Holdings Inc.
PTR Holdings Inc.
Xxxxxxx X. Xxxxxxx
Xxxxx X. XxxXxxxxxx
Xxxxx Xxxxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxxx
EXHIBIT A
LIST OF SUBSIDIARIES
UTi Worldwide Inc. Subsidiaries Country of Incorporation % Share Holding
------------------------------- ------------------------ ---------------
Union-Transport (Argentina) SA Argentina 100
UTi (Aust) Pty Limited Australia 100
UTi Belgium NV Belgium 100
UTi Logistics NV Belgium 100
Union-Transport Botswana Limited Botswana 100
UTi do Brasil Limitada Brazil 100
Corrib Limited British Virgin Islands 100
Xxxxxxx Company Limited British Virgin Islands 100
Kasteel II Limited British Virgin Islands 100
Karibe Investments Limited British Virgin Islands 100
Taipan Services Limited British Virgin Islands 100
Xxxxxx International Freight Auditors Limited British Virgin Islands 100
Transnacala Africa Express British Virgin Islands 100
Transtec Ocean Express Holdings Inc. British Virgin Islands 100
Union-Transport Africa Limited British Virgin Islands 100
Union-Transport Africa Services Limited British Virgin Islands 100
UTi Asia Pacific Limited British Virgin Islands 100
UTi International Inc. British Virgin Islands 100
UTi Networks Inc. British Virgin Islands 100
UTi Projects Limited British Virgin Islands 000
XXx Xxxxxxx X.X.X.X. Xxxxxxx 000
XXx, Xxxxxx, Inc. Canada 100
Commerce Customs Brokers and Freight Forwarders Limited Canada 100
X.X. Xxxxx Customs Brokers Limited Canada 100
CCB Ventures Limited Canada 000
Xxxxxxxx Xxxxxxxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxx 100
X. Xxxxxxx & Xxxxxxxx Ltd. Canada 100
Ambassador Brokerage Limited Canada 60
BDP Commerce Global Logistics Inc. Canada 50
Union-Transport Chile S.A. Chile 100
UTi Colcarga Transporte Internacional Limitada Colombia 100
UTi (CZ) s.r.o. Czech Republic 100
UTi Egypt Limited Egypt 55
UTi France S.A.R.L. France 100
UTi Deutschland GmbH Germany 100
UTi Administration Limited Guernsey 100
Air & Sea Union Holdings Limited Hong Kong 100
Hatro Hanse Transport Limited Hong Kong 000
Xxx Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx Xxxx 100
International Liner Agencies (H.K.) Limited Hong Kong 100
Scan-Cargo Transport Limited Hong Kong 100
Union-Transport (H.K.) Limited Hong Kong 100
UTi (H.K.) Limited Hong Kong 100
Transtec Ocean Express (H.K.) Hong Kong 100
UT Worldwide (India) (Pvt) Limited India 100
UTi Indonesia Indonesia 100
UTi Ireland Limited Ireland 100
UTi Eilat Overseas Limited Israel 51
UTi Italy SrL Italy 100
A-1
UTi Worldwide Inc. Subsidiaries Country of Incorporation % Share Holding
------------------------------- ------------------------ ---------------
UTi Japan K.K. Japan 100
UTK (Kenya) Limited Kenya 100
UTi Korea Company Limited Korea 100
Pyramid Freight (Proprietary) Limited Liechtenstein 100
UTi Logistics (Proprietary) Limited Liechtenstein 100
Transacala (Malawi) Limited Malawi 100
Union-Transport Properties (Malawi) Limited Malawi 100
Union-Transport (Malawi) Limited Malawi 100
Union-Transport (Mauritius) Limited Mauritius 100
UTi (MTIUS) Limited Mauritius 100
UTi Worldwide (M) Sdn Bhd Malaysia 100
Union Air Transport De Mexico SA De CV Mexico 100
Union-Transport (Mozambique) Limited Mozambique 100
Pyramid Freight (Proprietary) Limited Namibia 100
African Investments BV Xxxxxxxxxxx 000
Xxxxxxx Art Packers and Shippers BV Netherlands 000
XXX Xxxxxxxx XX Xxxxxxxxxxx 100
UTi Nederland BV Netherlands 100
UTi (Netherlands) Holdings BV Netherlands 100
Active Airline Representatives BV Netherlands 100
African Investment Holdings NV Netherlands Antilles 000
XXX Xxxxxxxx XX Netherlands Antilles 000
Xxxxx Xxx Xxxxxxxxx (X.X.) Xxxxxxxx XX Netherlands Antilles 100
Union Air Transport (N.A.) NV Netherlands Antilles 100
UTi New Zealand Limited New Zealand 100
Union-Transport Corp. Peru S.A. Peru 100
UTi (Global Logistics) Inc. Philippines 100
GSLI-Grupo De Servicos Logisticos Integrados LDA Portugal 100
UTi Rwanda Sarl Rwanda 100
UTi Worldwide (Singapore) Pte Ltd. Singapore 100
Co-ordinated Investment Holdings (Pty) Ltd. South Africa 50
Co-ordinated Materials Handling (Pty) Ltd. South Africa 50
Xxxxxx Property Investments (Pty) Limited South Africa 100
e-Deliveries (Pty) Limited South Africa 100
Deldevco Properties (Pty) Limited South Africa 000
Xxxxxx Xxxx (Xxx) Xxxxxxx Xxxxx Xxxxxx 100
Portion 118 Rietfonetin (Pty) Ltd. South Africa 100
Speedwheel Deliveries (Pty) Limited South Africa 100
Grupo SLI & Union, X.X. Xxxxx 000
Xxxxxxxxxx Xxxxxxxxx Xx Xxxxxxx, X.X. Xxxxx 100
Servicios Logisticos Integrados SLI, S.A. Spain 100
SLI Xxxxxxxxxxxxxxx Xx Xxxxxxxxx, X.X. Xxxxx 000
XXX Mantenimiento Integral, S.L. Spain 100
Technicos Asesores De Seguros Brokers Correduna De Seguros, S.A. Spain 000
Xxxxx Xx Servicios Logisticos Integrados, S.A. Spain 100
UTi Spain S.L. Spain 100
Value 4 Logistics, X.X. Xxxxx 000
Xxxx Xxxx, X.X. Xxxxx 100
UTi Pership (Pvt) Limited Sri Lanka 51
UTi Logistics AB Sweden 100
UTi (Taiwan) Limited Taiwan 100
UTi Air (Taiwan) Limited Taiwan 65
UTi Worldwide Co., Limited Thailand 100
UTi Tasimacilik Limited Turkey 60
A-2
UTi Worldwide Inc. Subsidiaries Country of Incorporation % Share Holding
------------------------------- ------------------------ ---------------
Transtec International Freight Services Limited United Kingdom 000
Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxx 000
XXx Xxxxxxxxx XX Xxxxxxx Xxxxxx Xxxxxxx 000
XXx Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx 100
UTi UK Holdings Limited United Kingdom 000
Xxxxx-Xxxxxxxxx (Xxxxxxxx) Xxxxxxx Xxxxxx Xxxxxxx 000
XXX Xxxxx Xxxxxxx (XX) Xxxxxxx Xxxxxx Xxxxxxx 000
XXX Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxx 100
SLI Tacisa, Inc. Xxxxxx Xxxxxx xx Xxxxxxx 000
Xxxxxxxx Xxxxxxxxxxx Xxxxxx Xxxxxx of America 000
Xxxxx-Xxxxxxxxx Xxxxxxxxx Xxxx. Xxxxxx Xxxxxx of America 100
Union-Transport Logistics Inc. United Xxxxxx xx Xxxxxxx 000
XXx, Xxxxxx Xxxxxx, Inc. United States of America 000
Xxxxx-Xxxxxxxxx (XX) Xxxxxxxx Xxx. Xxxxxx Xxxxxx of America 100
UTi Services Inc. United States of America 100
Vanguard Cargo Systems Inc. United States of America 100
UTi Uruguay SA Uruguay 100
UTi (Zambia) Limited Zambia 100
Transtec Freight (Zimbabwe) (Pvt) Limited Zimbabwe 100
A-3
EXHIBIT B
CUSTODY AGREEMENT
FOR THE
SALE OF ORDINARY SHARES OF
UTI WORLDWIDE INC.
UTi WORLDWIDE INC.
c/o UTi, Services, Inc.
00000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000 XXX
Attention: [ ]
Ladies and Gentlemen:
This Custody Agreement (the "Agreement") is executed by the undersigned
shareholder (the "Selling Shareholder"), in connection with and in furtherance
of a proposed public offering (the "Public Offering") of Ordinary Shares, no par
value per share (the "Ordinary Shares"), of UTi Worldwide Inc., a company
incorporated under the laws of the British Virgin Islands (the "Company"),
pursuant to which the Selling Shareholder proposes to sell up to 1,000,000
Ordinary Shares (collectively, the "Selling Shareholder Shares") and, if the
over-allotment option is exercised by the Underwriters pursuant to the
Underwriting Agreement, up to 150,000 additional Ordinary Shares (the "Selling
Shareholder Additional Shares" and, together with the Selling Shareholder
Shares, the "Shares"). The Shares are to be sold in the Public Offering to a
group of underwriters (the "Underwriters") represented by Bear, Xxxxxxx & Co.
Inc., X.X. Xxxxxx Securities Inc., BB&T Capital Markets, a division of Xxxxx &
Xxxxxxxxxxxx, Inc., and Lazard Freres & Co. LLC (together, the
"Representatives"), pursuant to an underwriting agreement to be entered into by
and among the Company, the Representatives on behalf of the Underwriters and the
Selling Shareholder (the "Underwriting Agreement"), at a price and on terms to
be set forth in the Underwriting Agreement. In connection with the Public
Offering, Computershare Trust Company, Inc., has been appointed as the Transfer
Agent (the "Transfer Agent") for the Ordinary Shares. Capitalized terms used,
but not otherwise defined herein, shall have the respective meanings ascribed to
them in the Underwriting Agreement.
In connection with and to facilitate the sale of the Shares to the
Underwriters, the undersigned hereby appoints the Company as custodian (the
"Custodian") and herewith deposits or will cause to be deposited with the
Custodian one or more certificates representing Ordinary Shares which share
certificates together represent not less than the total number of Shares to be
sold by the undersigned to the Underwriters in the Public Offering, which number
is set forth on Schedule I hereto. The Custodian is hereby authorized, in its
capacity as custodian, to take delivery of the certificates or instruments set
forth on Schedule I hereto to be completed and delivered with this Agreement by
the Selling Shareholder, which certificates or instruments represent such
Ordinary Shares held by the Selling Shareholder that will constitute the Shares
to be sold by the Selling Shareholder (collectively, the "Certificates"). Each
such Certificate so deposited is in negotiable and proper deliverable form
endorsed in blank with the signature of the undersigned thereon guaranteed by a
commercial bank or trust company in the United States or by a member firm of the
New York Stock Exchange, or is accompanied by a duly executed stock
B-1
power or powers in blank, bearing the signature of the undersigned so
guaranteed. The Custodian is hereby authorized and directed, subject to the
instructions of the Attorneys-in-Fact, (a) to hold in custody the Certificate or
Certificates deposited herewith, (b) to deliver or to authorize the Transfer
Agent to deliver the Certificate or Certificates deposited hereunder (or
replacement certificate(s) for the Shares) to or at the direction of the
Attorneys-in-Fact in accordance with the terms of the Underwriting Agreement and
(c) to return or cause the Transfer Agent to return to the undersigned new
certificate(s) for the Ordinary Shares represented by any Certificate deposited
hereunder that are not sold pursuant to the Underwriting Agreement.
The Custodian's acceptance hereof by the execution of this Agreement
shall constitute an acknowledgement by the Custodian of the receipt of the
Certificates herein referred to, shall constitute an acceptance by the Custodian
of the authorization herein conferred and shall evidence the Custodian's
agreement to carry out and perform this Agreement in accordance with the
provisions hereof. The Custodian shall be protected in acting upon any
certificate, notice or other instrument in writing received by the Custodian
hereunder or under the Underwriting Agreement that in good faith the Custodian
shall believe to be genuine and to have been filed or presented by a proper
person or persons, not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information therein contained.
Concurrently with the execution of this Agreement, the Selling
Shareholder has executed and delivered a Power of Attorney (a "Power of
Attorney") naming Xxxxx X. XxxXxxxxxx, Xxxxx Xxxxxxxxxxx and Xxxxxxxx X.
Xxxxxxx, or any of them acting singly or together, as attorney-in-fact (each, an
"Attorney-in-Fact") to act for the Selling Shareholder in connection with the
sale by the Selling Shareholder of the Shares pursuant to a Registration
Statement (the "Registration Statement") on Form F-3 (File No. 333-101309) under
the Securities Act of 1933, including the taking of certain actions on behalf of
the Selling Shareholder pursuant to the Underwriting Agreement, a preliminary
draft of which has been delivered to the Selling Shareholder.
In order to secure the performance of the Underwriting Agreement and
the sale thereunder of the Shares, the Selling Shareholder agrees with the
Custodian as follows:
1. The Selling Shareholder hereby appoints the Custodian to act as the
Selling Shareholder's agent as provided herein and the Custodian hereby accepts
such appointment. The Custodian shall act in accordance with the instructions
set forth in this Agreement and any further instructions given to it by written
instrument signed by the Selling Shareholder acting through the
Attorney-in-Fact.
2. The Selling Shareholder agrees that all Shares represented by the
Certificates deposited hereunder are subject to the interest of the Underwriters
and the Company for the purpose of completing the transactions contemplated by
the Underwriting Agreement and the interests of the Attorney-in-Fact (in their
capacities as such) under the Power of Attorney; the powers and authority hereby
granted are irrevocable and shall not be terminated by any act of the Selling
Shareholder, or by operation of law, whether by the termination, liquidation,
winding up or dissolution of the Selling Shareholder, or by the occurrence of
any other event (including, without limitation, the bankruptcy or insolvency of
the Selling Shareholder). If, after the execution hereof, the Selling
Shareholder should be dissolved or liquidated, or if any other event
B-2
shall occur before the completion of the transactions contemplated by the
Underwriting Agreement and this Agreement, the Custodian is nevertheless
authorized and directed to deal with the Certificates deposited hereunder or the
certificates issued in exchange therefor and to do all things herein provided
for in accordance with the terms and conditions hereof as if the termination,
liquidation, winding up or dissolution of the Selling Shareholder or other event
had not occurred regardless of whether or not the Custodian shall have received
notice thereof. This Agreement shall be binding upon the successors and assigns
of the Selling Shareholder.
3. Until the first to occur of (i) the Additional Closing Date (as
defined in the Underwriting Agreement) with respect to Shares sold by the
Selling Shareholder, or (ii) the termination of this Agreement pursuant to
paragraph 5 below, the Custodian shall hold the Certificates and related stock
power and written instrument(s) of transfer in safekeeping.
4. Upon each of the Closing Date and any Additional Closing Date, if
any, the Custodian is authorized and directed, upon the instructions of the
Attorney-in-Fact, to cause the number of the Selling Shareholder's Firm Shares
and Additional Shares, respectively to be sold, to be transferred on the books
of the Company, and to issue certificates, free of any restrictive legend,
representing such Shares to the Underwriters in the name of such person or
persons, in such denominations and at such time as the Underwriters shall
direct, and the Company in its capacity as Custodian shall, or shall cause the
Transfer Agent to, deliver, upon the instructions of the Attorney-in-Fact, such
new certificates on such Delivery Date to the Underwriters for the accounts of
the Underwriters; provided that such delivery shall be against payment to the
Custodian or to the Attorney-in-Fact, as they direct, of the aggregate purchase
price to be paid by the Underwriters to the order of the Selling Shareholder in
the amount and the manner specified in the Underwriting Agreement. If payment is
made to the Attorney-in-Fact, the Attorney-in-Fact shall deposit such payment
with the Custodian, and the Custodian shall dispose of such funds as hereinafter
provided.
5. Notwithstanding any other provision of this Agreement to the
contrary, this Agreement shall terminate forthwith upon (i) the termination of
the Underwriting Agreement, with respect to the Selling Shareholder in
accordance with the provisions thereof, (ii) the failure to consummate the sale
of any of the Shares to the Underwriters within 30 days of the date on which the
Underwriting Agreement is executed or (iii) the failure of the Underwriters to
execute the Underwriting Agreement by December 20, 2002. Upon any such
termination of this Agreement, the Custodian is authorized and directed to
return to the Selling Shareholder the Certificates delivered herewith, together
with any related stock powers and written instrument(s) of transfer, if still in
possession of the Custodian hereunder.
6. Until payment in full has been made for the number of Shares that
are sold pursuant to the provisions of the Underwriting Agreement, the Selling
Shareholder shall remain the record and beneficial owner of the Shares deposited
hereunder and shall have all the rights of a shareholder of the Company with
respect to the Shares, including the right to receive dividends attributable to
the Shares and to vote all of the Shares.
7. It is understood that the Underwriters intend to reoffer the Shares
to the public at a price per share that is higher than the price per Share paid
to the Selling Shareholder. In
B-3
addition, it is understood that the Selling Shareholder shall have no liability
for the fees and expenses of the Custodian except as provided in paragraph 8
hereof.
8. The Custodian is further authorized in its discretion to advance
funds for the account of the Selling Shareholder for the purchase of any stock
transfer stamps or the payment of any stock transfer tax required in connection
with the sale of any of the Selling Shareholder's Shares to the Underwriters and
to reimburse itself for the cost of such stamps and tax, if any, out of the
purchase price received by it for such Shares.
9. After making the payments provided for in paragraph 8 above, the
Custodian is directed (a) to remit to the Selling Shareholder the balance of the
purchase price received by it in respect of the Selling Shareholder's Shares
sold by the Selling Shareholder and (b) to return to the Selling Shareholder a
certificate or certificates for Shares, if any, registered in the same manner as
the Certificates delivered to it herewith, for any of the Selling Shareholder's
Shares that are not sold pursuant to the Underwriting Agreement within 30 days
following the date the Underwriting Agreement is executed.
10. The Custodian's acceptance hereof by the execution of this
Agreement shall constitute an acceptance by it of the authorization herein
conferred, and shall evidence its agreement to carry out and perform this
Agreement in accordance with the provisions hereof; subject, however, to the
following:
(a) The Custodian shall have no duties except those expressly
set forth herein; without limiting the generality of the foregoing, the
Custodian shall not have responsibility for the validity of any
agreement referred to herein or for the performance of any such
agreement by any party thereto or for the interpretation of any of the
provisions of any such agreement.
(b) The Custodian shall have no responsibility with respect to
the application or use of any funds paid by it as herein provided and
no interest shall be payable by it on any funds at any time held
hereunder.
(c) The Selling Shareholder agrees that the Custodian is
acting under this Agreement solely as the agent of the Selling
Shareholder, that the Custodian is not acting in a fiduciary capacity
to the Selling Shareholder and shall not be liable for any action taken
hereunder, for any failure to act hereunder or for any other reason
except gross negligence or willful misconduct. The Custodian shall not
be liable or responsible for anything done or omitted to be done by it
in good faith in accordance with the foregoing instructions.
(d) The Custodian shall be protected in acting upon any
certificate, notice or other instrument in writing received by it
hereunder or under the Underwriting Agreement which in good faith it
shall believe to be genuine and to have been filed or presented by a
proper person or persons, not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information therein contained.
B-4
(e) In no event shall the Custodian be responsible for the
acts of the Attorney-in-Fact or of the Underwriters nor shall it be
required to take any action whatsoever on behalf of the Selling
Shareholder or otherwise to enforce the rights or claims of the Selling
Shareholder against the Underwriters or the Attorney-in-Fact.
The Custodian shall not be bound by any waiver, modification or
amendment hereof unless in writing and signed by the Attorney-in-Fact and, if
its duties hereunder are affected, unless the Custodian also shall have given
its written consent thereto.
11. The Selling Shareholder hereby represents and warrants to the
Custodian that:
(a) It has, and at the time of delivery of the Shares to the
Underwriters it will have, full power and authority to enter into this
Agreement, the Underwriting Agreement and the Power of Attorney, to carry out
the terms and provisions hereof and thereof and to make all of the
representations, warranties and agreements contained herein and therein;
(b) This Agreement and the Power of Attorney are the valid and binding
agreements of the Selling Shareholder and are enforceable against the Selling
Shareholder in accordance with their respective terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights
generally from time to time in effect and may be subject to the application of
equitable principles and the enforceability of equitable remedies; and
(c) The execution, delivery and performance of this Agreement by the
Selling Shareholder:
(i) requires no action, consent or approval by or in respect
of, or filing with, any governmental body, agency, official or
authority or any individual, corporation, partnership, association,
trust or other entity or organization which has not been made or
obtained; and
(ii) does not constitute a material default under or give rise
to any right of termination, cancellation or acceleration of any
material right or obligation of such party or a loss of any material
benefit to which such party is entitled under any provision of any
agreement, contract, indenture, lease or other instrument binding upon
such party or any material license, franchise, permit or other similar
authorization held by such party or result in the creation or
imposition of any mortgage, life interest, lien (except as created by
this Agreement), pledge, charge, security interest, fiduciary
assignment, attachment, encumbrance or other adverse claim of any kind
in respect of any asset of such party, and only as applicable to the
Shares.
12. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to the conflict of
law provisions thereof which might apply the laws of any other jurisdiction.
13. All notices, requests and other communications hereunder shall be
in writing and shall be deemed to be duly given at the time of delivery or
mailing if delivered or mailed by first-class mail, postage prepaid, return
receipt requested and (a) if to the Underwriters or to the
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Company, addressed as provided in the Underwriting Agreement, (b) if to the
Selling Shareholder, addressed to the Selling Shareholder as follows: Direct
Administration Limited, P.O. Box 307, Picquerel House, L'Islet, Xx. Xxxxxxx'x,
Xxxxxxxx XX0 0XX, Xxxxxx Xxxxxxx, Attention: Xxxxxx Xxxxxx, with a copy (which
copy shall not constitute notice) to Xxxx Xxxx, Esq., Maitland & Co., Dublin, 00
Xxxxxxx Xxxxx, Xxxxxx 0 Xxxxxxx or (c) if to the Custodian, in care of UTi,
Services, Inc., 00000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx
00000 with a copy (which copy shall not constitute notice) to Paul, Hastings,
Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx
00000-0000, Attention: Xxxxxxx X. Xxxxx, Esq.; provided that any notice or
communication to the Custodian shall not be effective until actually received by
the Custodian.
14. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same document.
15. If any provision of this Agreement is found to be unenforceable as
applied in any particular case or circumstance in any applicable jurisdiction,
such finding shall not render the provision unenforceable in any other case or
circumstance, or render any other provision of this Agreement unenforceable to
any extent whatsoever.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the ___ day of ________, 2002.
PTR HOLDINGS INC.,
a British Virgin Islands corporation
By:_____________________________________
Name:
Title:
NOTARY OF SIGNATURE OF SELLING SHAREHOLDER
STATE OF _____________ )
) ss:
COUNTY OF_____________ )
The foregoing instrument was acknowledged before me this ____ day of _______,
2002 by __________________________. He/she personally appeared before me, is
personally known to me, or provided employment ID as identification.
Notary:_________________________________
Print Name:_____________________________
[NOTARIAL SEAL] Notary Public, State____________________
of My commission expires:_______________
ACCEPTANCE BY THE CUSTODIAN
UTi Worldwide Inc. hereby acknowledges receipt of the Certificates
described in this Agreement (and in the form described herein) and hereby agrees
to act in accordance with the terms of this Agreement.
Dated: , 2002
-----------
UTi WORLDWIDE INC.
By:
-------------------------------------
Name:
Title:
SEE THE ATTACHED INSTRUCTIONS
INSTRUCTIONS
FOR COMPLETING THE CUSTODY AGREEMENT (THE "AGREEMENT")
A. Please complete and return the Agreement and stock certificates as set
forth in paragraph D below. A copy of the Agreement will be returned to you at
your request.
B. Complete Schedule I attached to the Agreement.
C. The Agreement and each stock power included therewith must be executed
by you, with your signature on the Agreement and the accompanying stock powers
guaranteed by a commercial bank or trust company in the United States or any
broker which is a member firm of the New York Stock Exchange. Please sign the
stock powers and the Agreement exactly as your name appears on your stock
certificate(s).
D. Stock certificate(s), each with stock powers attached, along with an
executed and completed copy of the Agreement should be promptly returned by hand
delivery or by certified mail appropriately insured to: UTi Worldwide Inc., in
care of UTi, Services, Inc., 00000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000.
IF SENT BY OVERNIGHT COURIER, IT IS RECOMMENDED THAT THE EXECUTED STOCK POWERS
BE SENT UNDER SEPARATE COVER FROM THE CERTIFICATE(S).
E. If the stock certificate(s) that you submit represent a greater number
of Shares than the aggregate number of Shares which you agree to sell pursuant
to the Underwriting Agreement, the Custodian will cause to be delivered to you
in due course, but not earlier than ten days after the closing for the purchase
of Firm Shares (as such term is defined in the Underwriting Agreement) by the
Underwriters, a stock certificate, as the case may be, for the excess number of
shares.
F. Please contact Xxxxx X. XxxXxxxxxx, Xxxxx Xxxxxxxxxxx or Xxxxxxxx X.
Xxxxxxx if any information or representation included in the Agreement or the
Underwriting Agreement should change, or if you become aware of any new
information, at any time prior to the closing of the sale of Shares.
SCHEDULE I
LIST OF CERTIFICATES REPRESENTING THE SHARES BEING HELD BY
THE CUSTODIAN
CERTIFICATE NUMBER ORDINARY SHARES NUMBER OF ORDINARY SHARES
NUMBER REPRESENTED BY THIS CERTIFICATE FROM THIS CERTIFICATE TO BE SOLD1
------ ------------------------------- ---------------------------------
-----------------------
(1) If fewer than all shares represented by a Certificate are to be sold,
indicate below, if desired for income tax purposes, the date of purchase or
purchase price of the particular shares to be sold.
EXHIBIT C
DURABLE POWER OF ATTORNEY
FOR THE
SALE OF ORDINARY SHARES OF
UTI WORLDWIDE, INC.
The undersigned shareholder (the "Selling Shareholder"), in connection
with and in furtherance of a proposed public offering (the "Public Offering") of
Ordinary Shares, no par value per share (the "Ordinary Shares"), of UTi
Worldwide Inc., a company incorporated under the laws of the British Virgin
Islands (the "Company"), proposes to sell up to 1,000,000 Ordinary Shares
(collectively, the "Selling Shareholder Shares") and, if the over-allotment
option is exercised by the Underwriters pursuant to the Underwriting Agreement,
up to 150,000 additional Ordinary Shares (the "Selling Shareholder Additional
Shares" and, together with the Selling Shareholder Shares, the "Shares"). The
Shares are to be sold in the Public Offering to a group of underwriters (the
"Underwriters") represented by Bear, Xxxxxxx & Co. Inc., X.X. Xxxxxx Securities
Inc., BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc., and Lazard
Freres & Co. LLC (together, the "Representatives"), pursuant to an underwriting
agreement to be entered into by and among the Company, the Representatives on
behalf of the Underwriters and the Selling Shareholder (the "Underwriting
Agreement"), at a price and on terms to be set forth in the Underwriting
Agreement.
It is understood that at this time there is no commitment on the part of
the Underwriters to purchase any of the Shares from the Selling Shareholder, and
there is no assurance that a Public Offering of the Shares will take place. Any
sale and purchase of the Shares will be upon such terms and subject to such
conditions as shall be contained in the Underwriting Agreement. Certificates
representing the Shares are being deposited with the Company as custodian (the
"Custodian"), pursuant to a Custody Agreement of even date herewith between the
Selling Shareholder and the Custodian (the "Custody Agreement").
ARTICLE I.
The Selling Shareholder hereby irrevocably makes, constitutes and appoints
each of Xxxxx X. XxxXxxxxxx, Xxxxx Xxxxxxxxxxx and Xxxxxxxx X. Xxxxxxx as the
Selling Shareholder's true and lawful agent and attorney-in-fact (said persons,
or any of them acting singly, being referred to herein as the
"Attorney-in-Fact"), to act together or alone, with full power of substitution
and full authority, in the name, place and stead and for and on behalf of the
Selling Shareholder with respect to all matters arising in connection with the
sale by the Selling Shareholder of the Shares in connection with the Public
Offering, including, but not limited to, the power and authority to do or cause
to be done any of the following matters:
1.1 To do all things necessary to sell, assign, transfer and deliver to
the Underwriters, for and on behalf of the Selling Shareholder, all or any
portion of the Shares pursuant to the terms of the Underwriting Agreement, at
the purchase price set forth in the Underwriting Agreement, such Shares being
represented by the certificate(s) deposited by or on behalf of the Selling
Shareholder with the Custodian.
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1.2 For the purpose of effecting such sale: (i) to negotiate, prepare,
execute, carry out, deliver, and comply with, all of the provisions of the
Underwriting Agreement and any amendments or supplements thereto, to exercise
any power conferred upon, and to take any action authorized to be taken by, the
Selling Shareholder pursuant to the Underwriting Agreement in the sole and
absolute discretion of the Attorneys-in-Fact, and, subject to paragraphs 1.11
and 2.8 of this Power of Attorney, to agree to or refrain from agreeing to, in
such Attorney-in-Fact's sole discretion, on behalf of the Selling Shareholder,
the terms and conditions thereof (including, without limitation, the execution
and delivery of the certificates of the Selling Shareholder referenced in
paragraph 1.8 hereof, the per Share price to be paid by the Underwriters,
representations, warranties, agreements and indemnities of the Selling
Shareholder, and provisions concerning the Public Offering of Ordinary Shares by
the Underwriters), such agreement and approval to be conclusively evidenced by
the execution and delivery of the Underwriting Agreement by the
Attorney-in-Fact, including the making of all representations and agreements
provided in the Underwriting Agreement to be made by, and the exercise of all
authority thereunder vested in, the Selling Shareholder. The Selling Shareholder
hereby acknowledges and confirms that he has received and reviewed the draft
form of the Underwriting Agreement furnished herewith to him (which form is
referred to herein as the "Draft Underwriting Agreement"), and that such Draft
Underwriting Agreement may be revised prior to the execution and delivery of the
Underwriting Agreement by the Attorney-in-Fact, the Company or the Underwriters;
and (ii) to execute and deliver any amendment or amendments to the Custody
Agreement and to alter or modify any of the terms thereof.
1.3 To negotiate, determine and agree upon (a) the price at which the
Shares will be initially offered to the public by the Underwriters pursuant to
the Underwriting Agreement, (b) the underwriting discount with respect to the
Shares, and (c) the price at which the Shares will be sold to the Underwriters
by the Selling Shareholder pursuant to the Underwriting Agreement, which prices
and discounts per share shall be the same as the prices and discounts per share,
respectively, for the Shares of Ordinary Shares sold by the Company to the
Underwriters pursuant to the Registration Statement.
1.4 To use such Attorney-in-Fact's best efforts, but subject to paragraph
1.11 below, to arrange for, prepare or cause to be prepared a Registration
Statement on Form F-3 (the "Registration Statement") under the Securities Act of
1933 (the "Securities Act"), including one or more Prospectuses (together, the
"Prospectus"), relating to the offering and sale of Ordinary Shares of the
Company of which the Shares are a part and all amendments thereto and to take
all appropriate action with respect to the Registration Statement, including
requesting acceleration of the effectiveness of the Registration Statement on
behalf of the Selling Shareholder, advising the Securities and Exchange
Commission (the "Commission") of the reasons why the Selling Shareholder is
offering the Shares, acknowledging that the Registration Statement has received
summary, cursory or no review by the Commission and executing all such
documents, letters and consents as may in the discretion of the Attorney-in-Fact
be necessary or desirable in connection therewith, and to join, in such
Attorney-in-Fact's sole discretion, with the Company in withdrawing the
Registration Statement if the Company should desire to withdraw such
registration. The Registration Statement will be generally in the form of the
[Amendment No. 1] to the Registration Statement filed with the Commission on
[November 26], 2002 (File No. 333-101309), but with such corrections, additions
or changes as the Company and/or the Attorney-in-
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Fact may deem appropriate or as may be requested by the Commission, the National
Association of Securities Dealers, Inc. or state securities commissioners.
1.5 To incur any necessary or appropriate expense in connection with the
sale of Shares (including, without limitation the retention of legal counsel,
which may be counsel for the Company, in connection with any and all matters
referred to herein, to advance funds for and on behalf of the Selling
Shareholder and to cause to be paid (whether by deducting from the offering
proceeds to the Selling Shareholder or otherwise) all costs and expenses payable
by the Selling Shareholder, if any, pursuant to the provisions of the
Underwriting Agreement, this Power of Attorney, the Custody Agreement or any
other agreement between the Selling Shareholder and the Company, including any
applicable stock transfer taxes chargeable to the Selling Shareholder, all in
the discretion of the Attorney-in-Fact.
1.6 To make any assurances, communications and reports for and on behalf
of the Selling Shareholder to the Underwriters or the Custodian that may be
necessary or appropriate to facilitate the sale and delivery of the Shares or to
effect the registration of the Shares under the securities laws of any
jurisdiction.
1.7 To execute, acknowledge and deliver with the appropriate authorities
such requests, consents, agreements, documents, orders, receipts, requests,
notices, instructions, letters, writings and statements, and to take any and all
steps as may be deemed appropriate in connection with the registration or
qualification under the securities and blue-sky laws of the various
jurisdictions in which the Shares are to be sold by the several Underwriters
pursuant to the Underwriting Agreement, including, without limitation, the
giving or making of such undertakings, representations and agreements and the
taking of such other steps as the Attorney-in-Fact may deem necessary or
advisable.
1.8 Subject to paragraphs 1.11 and 2.8 below, to execute, verify and
deliver to the Underwriters at the Closing Date and, with respect to the
Additional Shares, any Additional Closing Date (each as defined in the
Underwriting Agreement) for and on behalf of the Selling Shareholder, the
certificates of the Selling Shareholder required by the Underwriting Agreement
with respect to the accuracy as of the Closing Date and, with respect to the
Additional Shares, any Additional Closing Date of the representations of the
Selling Shareholder set forth in the Underwriting Agreement and this Power of
Attorney and the compliance with and the performance by the Selling Shareholder
of all of the agreements set forth in the Underwriting Agreement to be performed
or complied with by the Selling Shareholder at or prior to the Closing Date and
any Additional Closing Date.
1.9 To instruct the Company and the Custodian on all matters pertaining to
the sale of Shares and delivery of certificates therefore, and to cause the
Custodian, or the Company's transfer agent (the "Transfer Agent"), to receive
and hold for transfer upon instructions from the Attorney-in-Fact,
certificate(s) for the Shares placed in custody with the Custodian, and upon
receipt of such instructions, to transfer such Shares and deliver new
certificates therefor to the Attorney-in-Fact for delivery to the several
Underwriters or to deliver the Shares to the Transfer Agent, for transfer
pursuant to the instructions of the Underwriters; and, if necessary, to endorse
(in blank or otherwise) in the name of the Selling Shareholder, the certificate
or certificates representing Shares deposited with the Custodian or stock powers
attached or to be attached to
C-3
the certificate or certificates, if required by either the Custody Agreement or
the Underwriting Agreement.
1.10 To sell to the Underwriters less than all of the Shares, in
accordance with separate written instructions, if any, by the Selling
Shareholder as to which of the Shares are to be sold first (which instructions,
if any, shall be specified on Schedule I to the Custody Agreement), if requested
to do so by the Underwriters in accordance with the Underwriting Agreement, and
in the event of a sale of such lesser number of Shares, to instruct the Transfer
Agent to issue and/or return certificates representing the balance of the Shares
of the Selling Shareholder in excess of those Shares being sold pursuant to the
Underwriting Agreement in the name of the Selling Shareholder and to deliver any
such certificates to the Attorney-in-Fact for redelivery to the Selling
Shareholder following the Closing Date and, with respect to the Additional
Shares, any Additional Closing Date.
1.11 Otherwise, to take all actions and do all things, including the
execution and delivery of all documents necessary, appropriate, required,
contemplated or deemed advisable by the Attorney-in-Fact, relating to, and
generally to act for and in the name of the Selling Shareholder with respect to
the sale and delivery of the Shares to, and the re-offering of the Shares by,
the Underwriters, as well as the delivery of the Shares and receipt of payment
for the Shares by or on behalf of the Selling Shareholder as fully as the
Selling Shareholder could if then personally present and acting, including,
without limitation, endorsement on behalf of the Selling Shareholder of
certificates representing the Shares, to receive payment for the Shares and to
deduct therefrom the Selling Shareholder's share, if any, of the offering
expenses to the extent payable by the Selling Shareholder pursuant to the
Underwriting Agreement, except that the Attorney-in-Fact is not empowered to
(and agrees that it will not):
(i) enter into any covenants, representations, warranties or
indemnities on behalf of any Selling Shareholder, other than those
covenants, representations, warranties and indemnities set forth in the
Underwriting Agreement and the certificates contemplated thereby as
provided by paragraphs 1.2 and 1.8 above or otherwise as specifically
authorized herein, and
(ii) furnish any information regarding any Selling Shareholder for
use in the Registration Statement (including, without limitation, any
preliminary prospectus or any prospectus contained in the Registration
Statement) without the consent of the Selling Shareholder.
If the Attorney-in-Fact should receive the purchase price of any Selling
Shareholder's Shares to be purchased by the Underwriters pursuant to the
Underwriting Agreement, the Attorney-in-Fact will immediately deposit the amount
of the purchase price so received with the Custodian under the Custody Agreement
for disposition by the Custodian as provided in the Custody Agreement.
ARTICLE II.
The Selling Shareholder hereby represents and warrants to, and agrees with
the Attorneys-in-Fact, and each of them, that:
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2.1 The Selling Shareholder has all right, power and authority to enter
into this Power of Attorney, the Underwriting Agreement and the Custody
Agreement and to consummate the transactions contemplated hereby and thereby,
including, without limitation, the sale, assignment, transfer and delivery of
the Shares to be sold by the Selling Shareholder pursuant to the Underwriting
Agreement. Each of this Power of Attorney and the Custody Agreement has been
duly authorized, executed and delivered by or on behalf of the Selling
Shareholder and constitutes the valid and binding instrument or agreement of the
Selling Shareholder enforceable in accordance with its terms except as such
enforceability may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally. If the undersigned is acting as a fiduciary, officer, partner, or
agent, the undersigned is enclosing with the Agreement certified copies of the
appropriate instruments pursuant to which the undersigned is authorized to act
hereunder.
2.2 The execution, delivery and performance of this Power of Attorney by
the Selling Shareholder (i) requires no action, consent or approval by or in
respect of, or filing with, any governmental body, agency, official or authority
or any individual, corporation, partnership, association, trust or other entity
or organization which has not been made or obtained and (ii) does not constitute
a material default under or give rise to any right of termination, cancellation
or acceleration of any material right or obligation of such party or a loss of
any material benefit to which such party is entitled under any provision of any
agreement, contract, indenture, lease or other instrument binding upon such
party or any material license, franchise, permit or other similar authorization
held by such party or result in the creation or imposition of any mortgage, life
interest, lien (except as created by this Power of Attorney), pledge, charge,
security interest, fiduciary assignment, attachment, encumbrance or other
adverse claim of any kind in respect of any asset of such party, and only as
applicable to the Shares.
2.3 The Selling Shareholder has, and immediately prior to the delivery of
any Shares to the Underwriters will have, good and valid title to the Shares to
be sold by the Selling Shareholder pursuant to the Underwriting Agreement, free
and clear of all liens, encumbrances, equities or claims of any nature, and full
right, power and authority to sell, assign, transfer and deliver such Shares,
subject only to the Underwriting Agreement, this Power of Attorney and the
Custody Agreement; and upon delivery of such Shares and payment therefor
pursuant to the Underwriting Agreement, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims of any nature,
will pass to the several Underwriters.
2.4 The attention of the Selling Shareholder has been directed to the
rules of the Commission which prohibit the Selling Shareholder from bidding for
or purchasing any Ordinary Shares of the Company, or attempting to induce anyone
else to bid for or purchase such shares, or taking any other action which might
tend to stabilize or manipulate the price of the Ordinary Shares, until the
distribution of Ordinary Shares pursuant to the Registration Statement has been
completed. The Selling Shareholder has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares.
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2.5 In connection with the sale of the Selling Shareholder's Shares to the
Underwriters, the Selling Shareholder has not distributed and will not
distribute any offering material other than that permitted by the Securities
Act.
2.6 The Selling Shareholder has duly executed and placed in custody all of
the documents to be delivered to the Custodian pursuant to the Custody
Agreement, which include all of the Shares to be sold by the Selling Shareholder
pursuant to the Underwriting Agreement.
2.7 The Selling Shareholder specifically agrees that the Shares
represented by the certificate(s) held in custody for the Selling Shareholder
pursuant to the Custody Agreement are subject to the interests of the Company
and the Underwriters; and, in consideration of those interests, and for the
purpose of completing the transactions contemplated by the Underwriting
Agreement and this Power of Attorney, the arrangements made by the Selling
Shareholder for such custody, and the appointment by the Selling Shareholder of
the Attorney-in-Fact by this Power of Attorney, shall be deemed coupled with an
interest and shall be irrevocable subject to Article V hereof. The Selling
Shareholder specifically agrees that the obligations of the Selling Shareholder
pursuant to the Underwriting Agreement shall not be terminated by operation of
law, whether by the termination, liquidation, winding up, or dissolution of the
Selling Shareholder or by the occurrence of any other event, (including, without
limitation, the bankruptcy or insolvency of the Selling Shareholder, or the
termination of any trust or estate for which the Selling Shareholder is acting
as a fiduciary) subject to Article V hereof. If, after the execution hereof, the
Selling Shareholder should be terminated, liquidated, wound up or dissolved, or
if any other similar event should occur (including, without limitation, the
bankruptcy or insolvency of the Selling Shareholder) before the delivery of the
Shares pursuant to the Underwriting Agreement, certificates representing the
Shares shall be delivered by or on behalf of the Selling Shareholder in
accordance with the terms and conditions of the Underwriting Agreement and of
the Custody Agreement, and actions taken by the Attorney-in-Fact pursuant to
this Power of Attorney shall be as valid as if such termination, liquidation,
winding up or dissolution or other event (including, without limitation, the
bankruptcy or insolvency of the Selling Shareholder) had not occurred,
regardless of whether or not the Custodian, the Attorney-in-Fact, or any of
them, shall have received notice thereof, subject to Article V hereof. This
Power of Attorney shall be binding upon the successors and assigns of the
Selling Shareholder.
2.8 The Selling Shareholder has reviewed the representations and
warranties to be made in by it in the Underwriting Agreement, and hereby
represents, warrants and covenants that, except as set forth in the succeeding
sentence, each of the representations and warranties of the Selling Shareholder
in the Underwriting Agreement is, and will be at all times from the date hereof
through and including the Closing Date and any Additional Closing Date, true and
correct, and will survive the delivery of any payment for the Shares sold
pursuant to the Underwriting Agreement. The Selling Shareholder will immediately
notify the Attorney-in-Fact, the Company and the Underwriters of the occurrence
of any event which shall cause the representations and warranties contained
herein or in the Underwriting Agreement not to be true and correct at any time
from the date hereof until the later of (A) the completion of the Public
Offering, (B) the Closing Date as provided in the Underwriting Agreement or (C)
any Additional Closing Date; and, from and after delivery of such notice, the
Attorney-in-Fact shall not have
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any authority hereunder to make or reaffirm, on behalf of the Selling
Shareholder, any representation or warranty inconsistent with the information
set forth in such notice.
2.9 The information contained in the preliminary prospectus included in
the Registration Statement with respect to the Selling Shareholder is true and
correct.
2.10 The Selling Shareholder has agreed to the terms of the "lock-up" as
set forth in Section 7(j) of the Underwriting Agreement.
2.11 Except as otherwise disclosed in a Selling Shareholder Questionnaire
or Officer and Director Questionnaire delivered to the Representatives or the
Lead Managers by the Selling Shareholder, the Selling Shareholder is not
directly or indirectly an affiliate of or associated with any member of the
National Association of Securities Dealers, Inc.
2.12 The Selling Shareholder understands and agrees that it is making the
foregoing representations, warranties and agreements for the benefit of, and
that such representations, warranties and agreements may be relied upon by, the
Attorney-in-Fact, the Company, the Custodian, the Underwriters and their
respective representatives, agents and counsel and may be specifically relied
upon by counsel for the Selling Shareholder, which counsel will also be relying
upon the factual information set forth in this Power of Attorney, for the
purpose of rendering the legal opinions required by the Underwriters as a
condition for consummating the sale of the Shares to be sold by the Selling
Shareholder.
ARTICLE III.
3.1 Upon execution and delivery of the Underwriting Agreement by the
Attorneys-in-Fact on behalf of the Selling Shareholder, in accordance with the
authority granted hereunder, the undersigned Selling Shareholder agrees to
indemnify and hold harmless the Underwriters, the Company, each of its directors
and each of its officers who sign the Registration Statement, and each person,
if any, who controls any Underwriter or the Company, and to contribute to
amounts paid as a result of losses, claims, damages, liabilities and expenses,
as provided in Sections 8 and 9 of the Underwriting Agreement.
3.2 The Selling Shareholder agrees, upon execution and delivery of the
Underwriting Agreement by or on behalf of the Selling Shareholder, to be bound
by and to perform each and every covenant and agreement therein of the Selling
Shareholder as a Selling Shareholder.
3.3 The Selling Shareholder agrees to deliver to the Attorneys-in-Fact
such documentation as the Attorneys-in-Fact, the Company or the Underwriters or
any of their respective counsel may reasonably request in order to effectuate
any of the provisions hereof or of the Underwriting Agreement, all of the
foregoing to be in form and substance satisfactory in all respects to the
Attorneys-in-Fact.
3.4 The Selling Shareholder does not have, or has waived prior to the date
hereof, any preemptive right, co-sale right or right of first refusal or other
similar right to purchase any of the Shares that are to be sold by the Company
to the Underwriters pursuant to the Underwriting Agreement; and the Selling
Shareholder does not own any warrants, options or similar rights to acquire, and
does not have any right or arrangement to acquire, any capital stock, rights,
C-7
warrants, options or other securities from the Company, other than those
described in the Registration Statement and the Prospectus.
ARTICLE IV.
The Selling Shareholder agrees that the Attorney-in-Fact shall not be
liable for any action taken hereunder, for any failure to act hereunder, or for
any other reason except gross negligence or willful misconduct. The Selling
Shareholder hereby agrees to indemnify and hold harmless the Attorney-in-Fact
from and against any and all loss, damage, liability or expense as incurred
which the Attorney-in-Fact may sustain directly or indirectly for any action in
connection with this Power of Attorney taken or omitted in good faith or in
accordance with an opinion of counsel, who may be counsel for the Company, so
long as such loss, damage, liability or expense was or is not due to the
Attorney-in-Fact's own gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction. It is understood that the
Attorney-in-Fact shall serve entirely without compensation, but will be entitled
to reimbursement from the Selling Shareholder for all out-of-pocket expenses
incurred by them hereunder.
ARTICLE V.
5.1 This Agreement, the deposit of the Shares pursuant hereto, and all
authority hereby conferred, is granted, made and conferred subject to and in
consideration of (i) the interests of the Attorneys-in-Fact, the Underwriters
and the Company in and for the purpose of completing the transactions
contemplated hereunder and by the Underwriting Agreement and (ii) the completion
of the registration of Ordinary Shares pursuant to the Registration Statement
and the other acts of the above-mentioned parties from the date hereof to and
including the execution and delivery of the Underwriting Agreement in
anticipation of the sale of Ordinary Shares, including the Shares, to the
Underwriters; and the Attorneys-in-Fact are hereby further vested with an
estate, right, title and interest in and to the Shares deposited herewith for
the purpose of irrevocably empowering and securing to them authority sufficient
to consummate said transactions. Accordingly, this Agreement shall be
irrevocable prior to December 20, 2002 and shall remain in full force and effect
until that date. The undersigned Selling Shareholder further agrees that this
Agreement shall not be terminated by operation of law or upon any dissolution,
winding up, distribution of assets or other event affecting the legal existence
of the undersigned Selling Shareholder. If any event referred to in the
preceding sentence shall occur, whether with or without notice thereof to the
Attorneys-in-Fact, any of the Underwriters or any other person, the
Attorneys-in-Fact shall nevertheless be authorized and empowered to deliver and
deal with the Shares deposited under the Agreement by the undersigned Selling
Shareholder in accordance with the terms and provisions of the Underwriting
Agreement and this Agreement as if such event had not occurred.
5.2 Notwithstanding any other provision of this Power of Attorney to the
contrary, this Power of Attorney (excluding Article IV) shall terminate
forthwith upon (i) the termination of the Underwriting Agreement, with respect
to the Selling Shareholder, in accordance with the provisions thereof, (ii) the
failure to consummate the sale of any of the Shares to the Underwriters within
30 days of the date on which the Underwriting Agreement is executed or (iii) the
failure of the Representatives and the Lead Managers to execute the Underwriting
Agreement by December 20, 2002. Such termination shall not affect the validity
of any lawful
C-8
action done or performed by the Attorney-in-Fact pursuant hereto prior to such
termination. Upon any such termination of this Power of Attorney, the
Attorney-in-Fact shall provide written instructions to the Custodian to return
the certificate(s) and other documents deposited under the Custody Agreement to
the Attorney-in-Fact. The Selling Shareholder directs the Attorney-in-Fact, if
this Power of Attorney is terminated as provided herein and after the payment of
any expense to be paid or borne by the Selling Shareholder, if any, to redeliver
or cause to be redelivered to the Selling Shareholder the certificate(s) and
other documents deposited under the Custody Agreement.
ARTICLE VI.
Subject to the provisions of this Power of Attorney, until payment in full
for the Shares has been made by the Underwriters to the Custodian or
Attorney-in-Fact pursuant to the provisions of the Custody Agreement and the
Underwriting Agreement, the Selling Shareholder shall remain the owner of all
Ordinary Shares delivered to the Custodian for the purpose of exercising the
rights of the Selling Shareholder as a shareholder of the Company.
ARTICLE VII.
7.1 The representations, warranties and agreements of the undersigned
Selling Shareholder contained herein and in the Underwriting Agreement shall
survive the sale and delivery of the Shares and the termination of this
Agreement.
7.2 This Power of Attorney is to be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
choice of law rules thereof which might apply to the laws of any other
jurisdiction.
ARTICLE VIII.
8.1 All notices, requests and other communications hereunder shall be in
writing and shall be deemed to have been duly given at the time of delivery or
mailing if delivered or mailed by first class mail, postage prepaid, return
receipt requested and addressed or by Federal Express overnight delivery or
facsimile transmission: if to the Selling Shareholder, at the Selling
Shareholder's address of record as a holder of Ordinary Shares of the Company or
such other address as the Selling Shareholder shall designate by notice
hereunder, and if to the Attorneys-In-Fact, in care of UTi, Services, Inc.,
00000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000 with a
copy to counsel for the Selling Shareholder at the address provided in the
Custody Agreement.
8.2 The representations, warranties and agreements of the Selling
Shareholder contained herein and in the Underwriting Agreement shall survive the
sale and delivery of the Shares and the termination of this Power of Attorney.
ARTICLE IX.
The Selling Shareholder ratifies all actions that the Attorney-in-Fact
shall do by virtue of this Power of Attorney and all actions provided for herein
may be taken by any one of the Attorneys-in-Fact.
C-9
ARTICLE X.
This Power of Attorney may be executed in one or more counterparts, all of
which shall be considered one and the same instrument and shall become effective
when one or more counterparts have been signed by the parties.
ARTICLE XI.
11.1 If any provision of this Power of Attorney is found to be
unenforceable as applied in any particular case or circumstance in any
applicable jurisdiction, such finding shall not render the provision
unenforceable in any other case or circumstance, or render any other provision
of this Power of Attorney unenforceable to any extent whatsoever.
11.2 Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any such provision shall be prohibited by or invalid under applicable
law, it shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
[Signature Page Follows]
C-10
IN WITNESS WHEREOF, the Selling Shareholder named below has executed this
Power of Attorney as of the __ day of _________, 2002.
Name, Address and Facsimile Number of PTR HOLDINGS INC.,
Selling Shareholder: a British Virgin Islands corporation
PTR Holdings Inc.
c/o Xxxxxx Xxxxxx ____________________________________
Direct Administration Limited
X.X. Xxx 000
Picquerel House
L'Islet
Xx. Xxxxxxx'x
Xxxxxxxx XX0 0XX Xxxxxx Xxxxxxx
Fax: x00 (00) 000-000000
NOTARY OF SIGNATURE OF SELLING SHAREHOLDER
STATE OF ______________ )
) ss:
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of
_________, 20__ by ____________. He/she personally appeared before me, is
personally known to me, or provided employment ID as identification.
Notary:________________________________
Print Name:____________________________
[NOTARIAL SEAL] Notary Public, State of________________
My commission expires:_________________
Accepted by the Attorneys-in-Fact
as of the date above set forth
____________________________
Name: Xxxxx X. XxxXxxxxxx
____________________________
Name: Xxxxx Xxxxxxxxxxx
____________________________
Name: Xxxxxxxx X. Xxxxxxx
ANNEX A
OPINION OF PAUL, HASTINGS, XXXXXXXX & XXXXXX LLP,
UNITED STATES COUNSEL FOR THE COMPANY
(i) Each U.S. Principal Subsidiary (as defined below) has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each U.S. Principal Subsidiary is
duly qualified and in good standing as a foreign corporation in each
jurisdiction where such U.S. Principal Subsidiary leases or owns real property.
Each U.S. Principal Subsidiary has the requisite corporate power and corporate
authority to own, lease and license its respective properties and to conduct its
business as now being conducted. All the issued and outstanding shares of
capital stock of each U.S. Principal Subsidiary have been duly and validly
issued and are fully paid and nonassessable and were not issued in violation of
any preemptive rights provided for in the articles or certificate of
incorporation thereof. Based upon such counsel's review of the stock ledgers of
such companies, the issued and outstanding shares of capital stock of each U.S.
Principal Subsidiary are owned by the immediate parent company thereof. As used
in said opinion, the term "U.S. Principal Subsidiary" shall mean UTi, United
States, Inc., a New York corporation, and Union-Transport (U.S.) Holdings, Inc.,
a Delaware corporation.
(ii) The Shares to be sold to the Underwriters under this Agreement have
been approved for quotation on the Nasdaq National Market.
(iii) Assuming due authorization by the Company, this Agreement has been
duly and validly executed and delivered by the Company to the extent execution
and delivery are governed by New York law.
(iv) To such counsel's knowledge, there is no litigation or governmental
or other action, suit, proceeding or investigation before any court in the
United States (state or federal) or before or by any United States (state or
federal) public, regulatory or governmental agency or body pending or threatened
against, or involving the properties or business of, the Company or any of its
U.S. Principal Subsidiaries, which is of a character required to be disclosed in
the Registration Statement and the Prospectus which has not been properly
disclosed therein.
(v) The execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated hereby by the Company do not and
will not (A) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its U.S. Principal Subsidiaries pursuant to, any
agreement, contract, franchise, license, permit or deed of trust known to such
counsel and which is filed as an exhibit to the Registration Statement to which
the Company or any of its U.S. Principal Subsidiaries is a party or by which any
of such corporations or their respective properties or assets may be bound or
(B) violate or conflict with any provision of the articles or certificate of
incorporation, by-laws or similar governing documents of any U.S. Principal
Subsidiary, or, to the knowledge of such counsel, any judgment, decree, order,
statute, rule or regulation of any United States Federal or New York or
California court or any United States Federal or New York or California
governmental or regulatory agency or body having jurisdiction over the Company
or any U.S. Principal Subsidiary or any of their respective properties or
assets. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any United States Federal or New
York or California state court or United States Federal or New York or
California governmental or regulatory agency or body having jurisdiction over
the Company or any of its U.S. Principal Subsidiaries or any of their respective
properties or assets is required for the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereby,
except for (1) such as may be required under state or foreign securities or Blue
Sky laws in connection with the purchase and distribution of the Shares by the
Underwriters and the rules and regulations of the NASD (as to all of which such
counsel need express no opinion) and (2) such as have been made or obtained
under the Act.
(vi) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, comply as to form in all material respects with the
requirements of the Act, the Exchange Act and the Regulations, except that such
counsel in each case does not express any opinion as to the financial
statements, notes and schedules thereto, and the other information of a
financial or accounting nature or information of a statistical nature derived
from financial statements included or incorporated by reference therein or
excluded therefrom or the exhibits thereto, and, except to the extent expressly
stated elsewhere in this opinion letter, such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus.
(vii) Such counsel has been orally advised by the Commission that the
Registration Statement was declared effective under the Act at ________ on ____,
and, that such counsel has been orally advised by the Commission that no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and to such counsel's knowledge
no proceedings therefor have been initiated or threatened by the Commission and
all filings required by Rule 424(b) of the Regulations have been made.
(viii) The statements set forth in the Company's Annual Report on Form
20-F for the period ended January 31, 2002 under the caption "United States
Federal Income Tax Consequences" insofar as they purport to describe and
summarize the provisions of the laws referred to therein, fairly summarize such
provisions in all material respects.
(ix) The Company is not an "investment company" as such term is defined in
the Investment Company Act.
-2-
(x) In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, no facts have come to the
attention of such counsel which would lead such counsel to believe that either
the Registration Statement at the time it became effective (including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) or Rule 434, if applicable), or any
post-effective amendment thereof made prior to the Closing Date as of the date
of such amendment, contained an untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus as of its date (or
any amendment thereof or supplement thereto made prior to the Closing Date as of
the date of such amendment or supplement) and as of the Closing Date contained
or contains an untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements, notes and schedules thereto,
and other information of a financial or accounting nature or information of a
statistical nature derived from financial statements included or incorporated by
reference therein or excluded therefrom or the exhibits thereto). In addition,
such counsel shall state that they have not independently verified the accuracy,
completeness or fairness of the statements made or included or incorporated by
reference in the Registration Statement or the Prospectus and take no
responsibility therefore, except as and to the extent set forth in paragraph
(viii) above.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent they deem proper, on opinions of counsel in foreign jurisdictions as
to matters of foreign law and on certificates of responsible officers of the
Company and certificates or other written statements of officers of departments
of various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and its U.S. Principal Subsidiaries,
provided that copies of any such opinions, statements or certificates shall be
delivered to Underwriters' Counsel and are in form and substance reasonably
satisfactory to such Underwriters' Counsel and provided that as to such
opinions, such other counsel expressly authorizes such reliance and counsel to
the Company expressly states in their opinion that such counsel's and Bear
Xxxxxxx' reliance on such opinion is justified.
-3-
HARNEYS
British Virgin Islands and Anguillan lawyers
Associated offices Xxxxxx Westwood & Riegels
Craigmuir Xxxxxxxx
London Tel: x00 (0) 00 0000 0000 XX Xxx 00
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
Fax: x00 (0) 00 0000 0000 Tel: x0 000 000 0000
0000 0000 Fax: x0 000 000 0000
xxx.xxxxxxx.xxx
Anguilla
Tel: x0 000 000 0000
Fax: x0 000 000 0000
Your Ref
[ ] Our Ref 011644-0016-WAW-o03-v06
Bear, Xxxxxxx & Co. Inc.
X.X. Xxxxxx Securities Inc.
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc.
Lazard Freres & Co. LLC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs
UTi WORLDWIDE INC. - IBC NO. 141257 (THE "COMPANY")
UTi NETWORKS INC. - IBC NO.22974 ("UTNI");
UTi INTERNATIONAL INC. - IBC NO. 88491 ("UTII"); AND
XXXXXXX COMPANY LTD. - IBC NO. 7867 ("XXXXXXX" AND TOGETHER WITH UTNI AND
UTII THE "BVI PRINCIPAL SUBSIDIARIES")
1. We are lawyers qualified to practise in the British Virgin Islands and
have been asked to advise in connection with:
(a) an Underwriting Agreement governed by the laws of the State of New
York, dated [ ] December 2002 between the Company and each of those
persons (the "UNDERWRITERS") detailed therein (the "AGREEMENT");
(b) a Registration Statement on Form F-3, as amended, under the
United States Securities Act of 1933 as filed with the Securities
and Exchange Commission on November 19, 2002 (Registration No.
333-101309 (the "REGISTRATION STATEMENT") in relation to the
proposed public offering by the Company of up to 4,600,000 of its
Ordinary Shares of no par value each (the "ORDINARY SHARES") and
by PTR Holdings Inc., a selling shareholder, of up to 1,150,000
Ordinary Shares of the Company including Ordinary
Shares issuable upon the exercise by the Underwriters of their
option to cover over-allotments, if any, all as more particularly
described in the Registration Statement. All of the Ordinary Shares
to be sold by the Company and by PTR Holdings Inc. in the proposed
offering and upon the exercise of the Underwriters' the
over-allotment options are referred to herein collectively as the
"SHARES";
(c) a form of Prospectus dated [ ] December 2002 in relation to the
proposed public offering of up to 5,000,000 Ordinary Shares of the
Company as annexed to and forming part of the Registration Statement
(the "PROSPECTUS").
(items (a-c) are hereafter together referred to as the "DOCUMENTS");
Capitalized terms used but not defined herein shall have the same meanings
given them in the Agreement.
2. For the purpose of this opinion, we have examined the following
documents:
(a) (i) a facsimile copy of the executed Agreement; and
(ii) couriered copies of the Registration Statement and
Prospectus;
(b) (i) copies of the Memorandum and Articles of Association and
Certificate of Incorporation of the Company and the BVI
Principal Subsidiaries respectively, available as a matter of
public record at the Companies Registry, Road Town, Tortola,
British Virgin Islands on [ ] 2002;
(ii) a facsimile copy of the resolutions of the directors of the
Company dated [ ] 2002 approving, inter alia, the Company's
entry into, and authorising the execution and delivery by the
Company of, the Agreement and authorising the various
transactions in connection therewith (the "DIRECTORS'
RESOLUTIONS");
(iii) an original registered agent's certificate dated [ ] 2002
identifying the directors, officers and shareholders of the
Company, issued by Midocean Management and Trust Services
(BVI) Limited, the registered agent of the Company (the
"REGISTERED AGENT'S CERTIFICATE");
(iv) (aa) an original registered agent's certificate dated [ ]
2002, and certified as true, complete and up-to-date
on [ ] 2002, identifying the directors, officers and
shareholders of UTNI, issued by Midocean Management and
Trust Services (BVI) Limited, the registered agent of
the company (the "UTNI REGISTERED AGENT'S CERTIFICATE");
(bb) an original registered agent's certificate dated [ ]
2002, and certified as true, complete and up-to-date on
[ ] 2002, identifying the directors, officers and
shareholders of UTII, issued by Midocean Management and
Trust Services (BVI) Limited, the registered agent of
the company (the "UTII REGISTERED AGENT'S CERTIFICATE");
2
(cc) an original registered agent's certificate dated [ ]
2002 identifying the directors, officers and
shareholders of Xxxxxxx, issued by Midocean Management
and Trust Services (BVI) Limited, the registered agent
of the company (the "XXXXXXX REGISTERED AGENT'S
CERTIFICATE");
(items (aa-cc) above are hereafter collectively referred to
as the "BVI PRINCIPAL SUBSIDIARIES' REGISTERED AGENTS'
CERTIFICATES")
(v) the public records of the Company and the Principal
Subsidiaries on file and available for inspection at the
Companies Registry, Road Town, Tortola, British Virgin Islands
on [ ] 2002;
(vi) the records of proceedings on file with, and available for
inspection on [ ] 2002 at the High Court of Justice, British
Virgin Islands;
(vii) a facsimile copy of a director's certificate signed by
[ ], a Director of the Company dated
[ ] December 2002 (the "DIRECTOR'S
CERTIFICATE");
(viii)an original Certificate of Good Standing dated
[ ] 2002 issued in respect of the Company by the
Registrar of Corporate Affairs, Road Town, Tortola, British
Virgin Islands;
(ix) a copy, certified to be true as at [ ] 2002, of the
share register of the Company and each BVI Principal
Subsidiary, issued by its respective registered agent.
3. For the purposes of this opinion we have assumed without further
enquiry:
(a) the authenticity of all documents submitted to us as originals, the
conformity with the originals thereof of all documents submitted to
us as copies and the authenticity of such originals;
(b) the genuineness of all signatures and seals;
(c) the accuracy and completeness of all corporate minutes,
resolutions and records which we have seen;
(d) the accuracy of any and all representations of fact expressed in
the documents we have examined;
(e) that the statements contained in the Agreement are (other than those
addressing matters of British Virgin Islands law) true, valid and
binding;
(f) that the Directors' Resolutions remain in full force and effect;
(g) that each of the BVI Principal Subsidiaries owns, leases and
operates its properties and conducts its business as set forth in
the Director's Certificate referred to at paragraph 2(b)(vii).
3
All capitalised terms appearing in this opinion and not otherwise defined
herein have the meanings ascribed to them in the Agreement.
4. Based on the foregoing, and subject to the qualifications expressed
below, our opinion is as follows:
(i) The Company is a company duly incorporated with limited liability
under the International Business Companies Act (Cap 291) and
validly existing in good standing under the laws of the British
Virgin Islands. It is a separate legal entity and is subject to
suit in its own name. Each BVI Principal Subsidiary is a company
duly incorporated with limited liability under the International
Business Companies Act Cap. 291 and validly existing in good
standing under the laws of the British Virgin Islands. Each BVI
Principal Subsidiary is a separate legal entity and is subject
to suit in its own name. All the issued and outstanding shares
of each BVI Principal Subsidiary have been duly and validly
authorised and issued, are fully paid and nonassessable and were
not issued in violation of or subject to any preemptive rights.
Based upon our review of the contents of the share register of
each BVI Principal Subsidiary, all of the issued and outstanding
shares of each BVI Principal Subsidiary are owned directly by the
Company or indirectly, based on the Director's Certificate, by
another Subsidiary of the Company;
(ii) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under
the Agreement. Each BVI Principal Subsidiary has the requisite
corporate power and authority to own, lease and operate its
respective properties and based on the Director's Certificate, to
conduct its respective business as now being conducted;
(iii) The Company has the corporate power and authority to conduct its
business as described in the Prospectus, and the conduct of such
business does not and will not conflict with or result in a default,
breach or violation of or under:
(A) any law of the British Virgin Islands or
(B) its Memorandum and Articles of Association;
(iv) The Agreement has been duly and validly authorized and executed and,
when delivered as a matter of fact, will have been duly delivered
for and on behalf of the Company;
(v) No consents, approvals, authorizations or orders of any court,
regulatory body, administrative agency or other governmental body of
or in the British Virgin Islands are necessary for the entry into
and performance by the Company of and the exercise of its rights and
the performance of its obligations pursuant to the Agreement,
including, without limitation, the issuance and sale of the Firm
Shares and the sale of the Additional Shares;
(vi) The execution and delivery of the Agreement by the Company and the
performance of its obligations and the exercise of any of its rights
thereunder or the consummation of
4
the transactions contemplated in the Registration Statement
(including the issuance and sale of the Shares and the sale of the
Additional Shares and the use of the proceeds from the sale of the
Shares and the sale of the Additional Shares as described in the
Prospectus under the caption "Use of Proceeds") and compliance by
the Company with its obligations under the Agreement does not and
will not conflict with or result in a default, breach or violation
of or under:
(A) any law of the British Virgin Islands or to the best of our
knowledge without further enquiry, and administrative
regulation or ruling in the British Virgin Islands;
(B) the Memorandum and Articles of Association of the Company or
(C) on the basis of the Director's Certificate, any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to
in the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration
Statement.
(vii) All of the outstanding Ordinary Shares are duly and validly
authorised and issued, are fully paid and non-assessable and were
not issued in violation of or subject to any preemptive rights and
no holder thereof is or will be subject to personal liability by
reason of being such holder. The Company has taken all corporate
action required to authorise its execution, delivery and performance
of the Agreement and the Firm Shares and the Additional Shares have
been duly authorised for issue and sale to the Underwriters by the
Company pursuant to its Directors' Resolutions and the Agreement
and, when issued, sold, delivered and paid for in accordance with
the Agreement and the Company's Memorandum and Articles of
Association, the Firm Shares and the Additional Shares will be
legally issued, fully paid and non-assessable, and based on the
Director's Certificate, free and clear of all restrictions on
transfer, liens, encumbrances, security interests and claims
whatsoever and will not be issued in violation of or subject to any
preemptive or similar rights and no holder of the Firm Shares or the
Additional Shares is or will be subject to personal liability by
reason of being such a holder;
(viii)On the basis of the Director's Certificate, neither the Company nor
any of the BVI Principal Subsidiaries is in violation of its
Memorandum and Articles of Association and no default by the Company
or any of the BVI Principal Subsidiaries exists in the due
performance or observation of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration
Statement or the Prospectus or filed or incorporated by reference as
an exhibit to the Registration Statement;
(ix) On the basis of its Memorandum and Articles of Association, the
Company is authorised to issue 600,000,000 shares divided into three
classes of one series each as follows:
(A) 500,000,000 Ordinary Shares of no par value each;
5
(B) 50,000,000 Class A Preference Shares of no par value each; and
(C) 50,000,000 Class B Preference Shares of no par value each.
The respective rights, privileges and preferences of the Ordinary
Shares and the Class A and Class B Preference Shares are as stated
in the Company's Memorandum and Articles of Association and as
described in the Prospectus; on the basis of the information
contained in the Company's share register, the outstanding capital
of the Company is as set forth in the Prospectus under the caption
"Capitalization";
(x) Any final and conclusive monetary judgement for a definite sum
obtained against the Company in the State of New York in respect of
the Agreement would be treated by the courts of the British Virgin
Islands as a cause of action in itself so that no retrial of the
issues would be necessary provided that:
(A) the Courts of the State of New York had jurisdiction in the
matter and the Company either submitted to such jurisdiction
or was resident or carrying on business within such
jurisdiction and was duly served with process;
(B) the judgement given by the Courts of the State of New York was
not in respect of penalties, taxes, fines or similar fiscal or
revenue obligations of the Company;
(C) in obtaining judgement there was no fraud on the part of the
person in whose favour judgement was given or on the part of
the Courts of the State of New York;
(D) recognition or enforcement of the judgement was not contrary
to natural justice;
(E) enforcement of the judgment was not contrary to public policy
in the British Virgin Islands.
(xi) The choice of the law of the State of New York as the proper law of
the Agreement would be upheld as a valid choice of law by the courts
of the British Virgin Islands and applied by such courts in
proceedings in relation to the Agreement as the proper law thereof
and the submission by the Company to the jurisdiction of the courts
of the State of New York and nomination by the Company of an agent
in the State of New York to accept service of process in respect of
proceedings before such courts is valid;
(xii) It is not necessary in order to ensure the legality, validity,
enforceability or admissibility in evidence in proceedings in the
British Virgin Islands of the obligations of the Company under the
Agreement that it or any other document be notarised, filed,
registered or recorded in the British Virgin Islands or elsewhere;
(xiii)No court proceedings pending against the Company or any of the BVI
Principal Subsidiaries are revealed from the searches conducted at
the British Virgin Islands High Court Registry;
6
(xiv) On the basis of searches conducted at the Registry of Corporate
Affairs and the British Virgin Islands High Court Registry, no
currently valid order or resolution for winding up of the Company or
any of the BVI Principal Subsidiaries and no current notice of
appointment of a receiver over the Company, any of the BVI Principal
Subsidiaries or any of their assets appears on the records
maintained in respect of the Company or any of the BVI Principal
Subsidiaries, but it is to be noted that it is not a requirement
that notice of appointment of a receiver be registered with the
Registrar of Corporate Affairs or any other public body in the
British Virgin Islands;
(xv) Service of process in the British Virgin Islands on the Company or
the BVI Principal Subsidiaries may be effected by leaving at the
Registered Office of the Company or the BVI Principal Subsidiaries
the relevant document to be served. On the basis of the information
contained in the Memorandum and Articles of Association of the
Company, the Registered Office of each such company is 9 Columbus
Centre, Pelican Drive, Road Town, Tortola, British Virgin Islands;
(xvi) The Company has the power to submit, and has taken all necessary
corporate action to submit to the jurisdiction of any United States
federal district court or State court in the State of New York,
County of New York, and to appoint CT Corporation System as the
authorised agent of the Company for the purpose described in Section
17 of the Agreement;
(xvii)The Underwriters have standing to bring an action or proceedings
before the appropriate courts in the British Virgin Islands for the
enforcement of the Agreement. It is not necessary or advisable in
order for the Underwriters to enforce their rights under the
Agreement, including the exercise of remedies thereunder, that the
Underwriters be licensed, qualified or otherwise entitled to carry
on business in the British Virgin Islands;
(xviii) There is no income or other tax of the British Virgin Islands
imposed by withholding or otherwise on any payment to be made to or
by the Company pursuant to the Agreement or the issue or transfer of
the Shares or the Additional Shares by the Company, the delivery of
the Shares or the Additional Shares to the Underwriters in the
manner contemplated in the Agreement or the sale and transfer of the
Shares or the Additional Shares;
(xix) The Agreement will not be subject to ad valorem stamp duty in the
British Virgin Islands and no registration, documentary, recording,
transfer or similar tax, fee or charge is payable in the British
Virgin Islands in connection with the execution, delivery, filing,
registration or performance of the Agreement;
(xx) The Company is not entitled to any immunity under the laws of the
British Virgin Islands, whether characterised as sovereign immunity
or otherwise, from any legal proceedings to enforce the Agreement in
respect of itself or its property; and
(xxi) The statements in the Prospectus under the captions (a) "Risk
Factors - It may be difficult for our shareholders to effect service
of process and enforce judgements obtained in United States courts
against us or our directors and executive officers who
7
reside outside of the United States", "Because we are incorporated
under the laws of the British Virgin Islands, it may be more
difficult for our shareholders to protect their rights than it would
be for a shareholder of a corporation incorporated in another
jurisdiction", and "Our Memorandum and Articles of Association
contain anti-takeover provisions which may discourage attempts by
others to acquire or merge with us and which could reduce the market
value of our ordinary shares" insofar as they describe certain
provisions of the laws of the British Virgin Islands, (b) "Risk
Factors - Future issuances of preference shares could adversely
affect the holders of our ordinary shares" and "Our Memorandum and
Articles of Association contain anti-takeover provisions which may
discourage attempts by others to acquire or merge with us and which
could reduce the market value of our ordinary shares", insofar as
they as they describe certain provisions of the Memorandum and
Articles of Association of the Company, (c) Capital Stock" insofar
as they describe certain provisions of the Memorandum and Articles
of Association relating to the share capital of the Company, (d) the
statements in the Company's Annual Report on Form 20-F for the
fiscal year ended January 31, 2002 in Item 10 of Part I under the
caption "Memorandum and Articles of Association", insofar as they
describe certain provisions of the Memorandum and Articles of
Association relating to the share capital of the Company and the
International Business Companies Act (Cap 291) and (e) the
statements in the Company's Annual Report on Form 20-F for the
fiscal year ended January 31, 2002 in Item 10 of Part I under the
caption "Exchange Controls", insofar as they constitute a summary of
the absence of British Virgin Islands laws or regulations
restricting capital imports or exports and the payment of dividends
to non-resident shareholders and (f) the statements in the Company's
Annual Report on Form 20-F for the fiscal year ended January 31,
2002 in Item 10 of Part I under the caption "British Virgin Islands
Taxation", insofar as they constitute a summary of matters of
British Virgin Islands tax law, constitute accurate summaries
thereof in all material respects.
5. This opinion is confined to and given on the basis of the laws of the
British Virgin Islands as they are in force at the date hereof. We have
made no investigation of, and express no opinion on, the laws of any other
jurisdiction that might be applicable to the transaction contemplated by
the Agreement.
6. The opinions set out above are, to the extent that enforcement of the
Agreement is sought in the courts of the British Virgin Islands, subject
to the following qualifications:
(i) Rights and obligations may be limited by bankruptcy, insolvency,
liquidation, arrangement and other similar laws of the British
Virgin Islands of general application affecting the rights of
creditors.
(ii) Equitable remedies such as injunctions and orders for specific
performance are discretionary and will not normally be available
where damages are considered an adequate remedy.
(iii) Where obligations are to be performed in a jurisdiction outside the
British Virgin Islands they may not be enforceable under the laws of
the British Virgin Islands to the extent that such performance would
be contrary to public policy under the laws of the British Virgin
Islands.
8
(iv) The courts in the British Virgin Islands will determine in their
discretion whether or not an illegal or unenforceable provision may
be severed.
(v) The courts of the British Virgin Islands may refuse to give effect
to a provision in respect of the cost of unsuccessful litigation
brought before those courts or where the courts themselves have made
an order for costs.
(vi) The term "enforceable" means that a document is of a type and in
form enforced by the British Virgin Islands courts. It does not mean
that each obligation will be enforced in accordance with its terms.
Certain rights and obligations may be qualified by the
inconclusiveness of certificates, doctrines of good faith and fair
conduct, the availability of equitable remedies and other matters.
However, in our view, this qualification would not defeat your
legitimate expectations in any material respect.
(vii) Wherever we have qualified our opinion by the phrase "to the best of
our knowledge" or similar language, it is intended to indicate that
during the course of our reviewing the documents specifically listed
herein and our searches conducted at the Companies Registry and the
High Court Registry, no information has come to our attention which
has given us actual knowledge of the facts or circumstances referred
to. However we have not undertaken any special or independent
investigation to determining the existence or absence of such facts
or circumstances and no inference as to our knowledge in that regard
to that fact that we have acted on behalf of the Company or any of
the BVI Principal Subsidiaries in other transactions may be drawn.
7. This opinion is rendered pursuant to clause 7(c) of the Agreement and is
to your benefit and use and the benefit and use of your legal counsel in
connection with the transactions contemplated by the Agreement only. It
may not be divulged to or used by any person or for any other purpose
without our specific written consent.
Yours faithfully
XXXXXX WESTWOOD & RIEGELS
9
ANNEX C
[OPINION OF FOREIGN COUNSEL FOR THE COMPANY]
(i) If such Foreign Principal Subsidiary is established as a private
limited liability company in a civil law jurisdiction, that such Foreign
Principal Subsidiary has been duly established and is validly existing as a
corporation under the laws of its jurisdiction of establishment and has all
requisite corporate authority to own, lease and license its respective
properties and to conduct its business as now being conducted. All issued and
outstanding quotas (equivalent to shares or stock) have been duly and validly
issued and are fully paid and nonassessable and have not been issued in
violation of preemptive rights and according to the statutes or constitutive
documents of such Foreign Principal Subsidiary and based on counsel's review of
the ledgers or other appropriate corporate records of such Foreign Principal
Subsidiary to the knowledge of such counsel, is owned by the immediate parent
company thereof.
(ii) If such Foreign Principal Subsidiary has been incorporated under the
laws of the United Kingdom, such Foreign Principal Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has all requisite corporate
authority to own, lease and license its respective properties and to conduct its
business as now being conducted. All issued and outstanding shares (or stock)
have been duly and validly issued and are fully paid and nonassessable and were
not issued in violation of preemptive rights and according to the share register
(stock ledgers) of such company and to the knowledge of such counsel, is owned
directly or indirectly by the immediate parent company thereof.
(iii) If such Foreign Principal Subsidiary is organized as a joint stock
corporation or public company in a civil law country, such Foreign Principal
Subsidiary has been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation. Such
Foreign Principal Subsidiary has the requisite corporate power and corporate
authority to own, lease and license its respective properties and to conduct its
business as now being conducted. All the issued and outstanding capital stock of
such Foreign Principal Subsidiary has been duly and validly issued and is fully
paid and nonassessable and was not issued in violation of any preemptive rights.
Based upon such counsel's review of the stock ledgers of such company, the
issued and outstanding capital stock of such Foreign Principal Subsidiary is
owned directly or indirectly by the immediate parent company thereof.
ANNEX D
OPINION OF XXXXXX, WESTWOOD & RIEGELS,
BRITISH VIRGIN ISLANDS COUNSEL FOR THE SELLING SHAREHOLDER
[ ] 2002 11644-0016-WAW-o02-v06
Bear, Xxxxxxx & Co. Inc.
X.X. Xxxxxx Securities Inc.
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc.
Xxxxxx Freres & Co. LLC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs
UTI WORLDWIDE INC - IBC NO. 141257 (THE "COMPANY")
1. We are lawyers qualified to practise in the British Virgin Islands and
have been asked to render this opinion in connection with an Underwriting
Agreement governed by the laws of the State of New York, dated [ ]
December 2002 (the "AGREEMENT") addressed to yourselves, as
representatives of the several Underwriters named in Schedule I of the
Agreement, in relation to the proposed public offering of up to 1,150,000
Ordinary Shares of no par value each of the Company (the "SHARES") by PTR
Holdings Inc. (the "SELLING SHAREHOLDER"), including the Ordinary Shares
issuable upon the exercise by the Underwriters of their option to cover
over-allotments, if any, all as more particularly described in a
Registration Statement on Form F-3, as amended, under the United States
Securities Act of 1933 as filed with Securities and Exchange Commission on
November 19, 2000 (Registration No. 333-101309) (the "REGISTRATION
STATEMENT").
2. For the purpose of this opinion, we have examined the following documents:
(a) (i) a copy of the Agreement, and the exhibits thereto;
(ii) a copy of the Registration Statement;
(iii) a copy of the form of Prospectus dated [ ] December 2002 in
relation to the proposed public offering of the Company's
ordinary shares as annexed to and forming part of the
Registration Statement;
(the items listed in paragraph (a) are hereafter together referred to as
the "DOCUMENTS")
(b) a copy of a custody agreement (the "CUSTODY AGREEMENT") in form of a
letter addressed to the Company, dated [ ] December 2002
and executed by the Selling Shareholder;
(c) a copy of a Durable Power of Attorney (the "POWER OF ATTORNEY")
dated [ ] December 2002 and issued by the Selling Shareholder;
(d) (i) the Memorandum and Articles of Association and Certificate of
Incorporation of the Selling Shareholder on file at the
Registry of Corporate Affairs on [ ];
(ii) a facsimile copy of the resolutions of the directors of the
Selling Shareholder dated [ ] approving, inter alia,
the Selling Shareholder's entry into, and authorising the
execution and delivery by the Selling Shareholder of, the
Agreement, the Custody Agreement and the Power of Attorney and
authorising the various transactions in connection therewith
(the "DIRECTORS' RESOLUTIONS");
(iii) an original registered agent's certificate dated [ ]
identifying the directors, officers and shareholders of the
Selling Shareholder, issued by Midocean Management and Trust
Services (BVI) Limited, the registered agent of the Selling
Shareholder (the "REGISTERED AGENT'S CERTIFICATE");
(iv) a copy, certified to be true as at [ ] December 2002, of the
share register of the Company, issued by the Registered Agent;
(v) a copy, certified to be true as at [ ] December 2002, of the
share register of the Selling Shareholder, issued by its
Registered Agent;
(vi) the public records of the Selling Shareholder on file and
available for inspection at the Registry of Corporate Affairs
on [ ] December 2002;
(vii) the records of proceedings on file with, and available for
inspection on [ ] December 2002 at the Registry of the High
Court of Justice, British Virgin Islands; and
(viii) a director's certificate dated [ ] December
2002, signed by [ ], a director of the Selling
Shareholder (the "DIRECTOR'S CERTIFICATE"); and
2
(ix) an original Certificate of Good Standing dated [ ] December
2002 issued in respect of the Selling Shareholder by the
Registrar of Corporate Affairs, Road Town, Tortola, British
Virgin Islands.
3. For the purposes of this opinion we have assumed without further enquiry:
(a) the authenticity of all documents submitted to us as originals, the
conformity with the originals thereof of all documents submitted to
us as copies and the authenticity of such originals;
(b) the genuineness of all signatures and seals;
(c) the accuracy and completeness of all corporate minutes, resolutions
and records which we have seen;
(d) the accuracy of any and all representations of fact expressed in the
documents we have examined;
(e) that the statements contained in the Agreement are (other than those
addressing matters of British Virgin Islands law) true, valid and
binding; and
(f) that the Directors' Resolutions remain in full force and effect.
All capitalised terms appearing in this opinion and not otherwise defined
herein have the meanings ascribed to them in the Agreement.
4. Based on the foregoing, and subject to the qualifications expressed below,
our opinion is as follows:
(a) The Selling Shareholder is a company duly incorporated with limited
liability under the International Business Companies Act (Cap 291)
and validly existing in good standing under the laws of the British
Virgin Islands. It is a separate legal entity and is subject to suit
in its own name.
(b) The Selling Shareholder has the corporate power and authority and
all other necessary authority to own, lease and operate its
properties and based on the Director's Certificate to conduct its
business as now being conducted.
(c) The Selling Shareholder has full legal right, power and authority to
enter into the Agreement, the Custody Agreement and the Power of
Attorney and to sell, assign, transfer and deliver the Shares and
the Additional Shares to be sold by the Selling Shareholder in the
manner provided in the Agreement.
(d) Based upon the Director's Certificate mentioned at paragraph
2(d)(viii) above, the Selling Shareholder is the holder of record
and has good and valid title to the certificates for the Shares [and
the Additional Shares] to be sold by the Selling Shareholder, and
upon delivery thereof pursuant to the Agreement and payment
3
therefor, good and clear title will pass to the Underwriters,
severally, free and clear of all restrictions on transfer, liens,
encumbrances, security interests and claims whatsoever. The Selling
Shareholder had the legal right and power, and all authorisations
and approvals required under its Memorandum and Articles of
Association, to enter into the Agreement, the Custody Agreement and
the Power of Attorney and to sell, transfer and deliver all of the
Shares that may be sold by the Selling Shareholder under the
Agreement and to comply with its other obligations under the
Agreement, the Custody Agreement and the Power of Attorney.
(e) The Agreement has been duly and validly authorised and executed and,
upon being delivered as a matter of fact, will have been duly
delivered for and on behalf of the Selling Shareholder.
(f) The Custody Agreement and the Power of Attorney appointing the
Company as the Custodian and Xxxxx X. XxxXxxxxxx, Xxxxx Xxxxxxxxxxx
and Xxxxxxxx X. Xxxxxxx as the Selling Shareholder's
Attorneys-in-Fact, with regard to the transactions contemplated by
the Agreement and by the Registration Statement, have been duly
authorised, executed and, upon being delivered as a matter of fact,
will have been duly delivered by or on behalf of the Selling
Shareholder and are the valid and binding agreements of the Selling
Shareholder, enforceable in accordance with their respective terms,
and pursuant to such Power of Attorney, the Selling Shareholder has
authorised such Attorneys-in-Fact to execute and deliver on the
Selling Shareholder's behalf the Agreement and any other document
necessary or desirable in connection with the transactions
contemplated by the Agreement and to deliver the Shares [and the
Additional Shares] to be sold by the Selling Shareholder pursuant to
the Agreement.
(g) Assuming that the Underwriters purchase the Shares [and the
Additional Shares] sold by the Selling Shareholder pursuant to the
Agreement for value, in good faith and without notice of any adverse
claim, the delivery of such Shares pursuant to the Agreement will
pass good and valid title to such Shares, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or other
adverse claim.
(h) The execution, delivery and performance of the Agreement, the
Custody Agreement and the Power of Attorney by the Selling
Shareholder, compliance with all the provisions thereof by the
Selling Shareholder and the consummation of the transactions
contemplated thereby will not require any consent, approval,
authorisation or order of any court, regulatory body, administrative
agency or other governmental body of or in the British Virgin
Islands, and, based on the Director's Certificate, will not conflict
with or constitute a breach of any of the terms or provisions of, or
a default under, any agreement, indenture or other instrument to
which the Selling Shareholder is a party or by which the Selling
Shareholder or the property of the Selling Shareholder is bound,
will not contravene or conflict with, result in a breach or
violation of, or constitute a default under, the Memorandum and
Articles of Association of the Selling Shareholder; violate,
contravene or conflict with any provision of any law of the
4
British Virgin Islands, or to the best of our knowledge without
further enquiry, any administrative regulation or ruling in the
British Virgin Islands, and, based on the Director's Certificate,
will not violate, result in a breach of or constitute a default
under the terms of any other agreement or instrument to which the
Selling Shareholder is a party or by which it is bound, or any
judgement, order or decree applicable to the Selling Shareholder of
any British Virgin Islands court, or to the best of our knowledge,
without further enquiry, any regulatory body, administrative agency,
governmental body or arbitrator in the British Virgin Islands
applicable to the Selling Shareholder or property of the Selling
Shareholder.
(i) Any final and conclusive monetary judgement for a definite sum
obtained against the Selling Shareholder in the State of New York in
respect of the Agreement would be treated by the courts of the
British Virgin Islands as a cause of action in itself so that no
retrial of the issues would be necessary provided that:
(i) the Courts of the State of New York had jurisdiction in the
matter and the Selling Shareholder either submitted to such
jurisdiction or was resident or carrying on business within
such jurisdiction and was duly served with process;
(ii) the judgement given by the Courts of the State of New York was
not in respect of penalties, taxes, fines or similar fiscal or
revenue obligations of the Selling Shareholder;
(iii) in obtaining judgement there was no fraud on the part of the
person in whose favour judgement was given or on the part of
the Courts of the State of New York;
(iv) recognition or enforcement of the judgement was not contrary
to natural justice; and
(v) enforcement of the judgment was not contrary to public policy
in the British Virgin Islands.
(j) The choice of the law of the State of New York as the proper law of
the Agreement would be upheld as a valid choice of law by the courts
of the British Virgin Islands and applied by such courts in
proceedings in relation to the Agreement as the proper law thereof
and the submission by the Selling Shareholder to the jurisdiction of
the courts of the State of New York and nomination by the Selling
Shareholder of an agent in the State of New York to accept service
of process in respect of proceedings before such courts is valid;
(k) It is not necessary in order to ensure the legality, validity,
enforceability or admissibility in evidence in proceedings in the
British Virgin Islands of the obligations of the Selling Shareholder
under the Agreement that it or any other
5
document be notarised, filed, registered or recorded in the British
Virgin Islands or elsewhere;
(l) No court proceedings pending against the Selling Shareholder or any
of the BVI Principal Subsidiaries are revealed from the searches
conducted at the British Virgin Islands High Court Registry;
(m) On the basis of searches conducted at the Registry of Corporate
Affairs and the British Virgin Islands High Court Registry, no
currently valid order or resolution for winding up of the Selling
Shareholder and no current notice of appointment of a receiver over
the Selling Shareholder or any of its assets appears on the records
maintained in respect of the Selling Shareholder, but it is to be
noted that it is not a requirement that notice of appointment of a
receiver be registered with the Registrar of Corporate Affairs or
any other public body in the British Virgin Islands;
(n) Service of process in the British Virgin Islands on the Selling
Shareholder may be effected by leaving at the Registered Office of
the Selling Shareholder the relevant document to be served. On the
basis of the information contained in the Memorandum and Articles of
Association of the Selling Shareholder, the Registered Office of the
Selling Shareholder is 9 Columbus Centre, Pelican Drive, Road Town,
Tortola, British Virgin Islands;
(o) The Selling Shareholder has the power to submit, and has taken all
necessary corporate action to submit to the jurisdiction of any
United States federal district court or State court in the State of
New York, County of New York, and to appoint CT Corporation System
as the authorised agent of the Selling Shareholder for the purpose
described in Section 17 of the Agreement;
(p) The Underwriters have standing to bring an action or proceedings
before the appropriate courts in the British Virgin Islands for the
enforcement of the Agreement. It is not necessary or advisable in
order for the Underwriters to enforce their rights under the
Agreement, including the exercise of remedies thereunder, that the
Underwriters be licensed, qualified or otherwise entitled to carry
on business in the British Virgin Islands;
(q) There is no income or other tax of the British Virgin Islands
imposed by withholding or otherwise on any payment to be made to or
by the Selling Shareholder pursuant to the Agreement or the issue or
transfer of the Shares or the Additional Shares by the Selling
Shareholder, the delivery of the Shares or the Additional Shares to
the Underwriters in the manner contemplated in the Agreement or the
sale and transfer of the Shares or the Additional Shares;
(r) The Agreement will not be subject to ad valorem stamp duty in the
British Virgin Islands and no registration, documentary, recording,
transfer or similar tax, fee or charge is payable in the British
Virgin Islands in connection with the execution, delivery, filing,
registration or performance of the Agreement;
6
(s) The Selling Shareholder is not entitled to any immunity under the
laws of the British Virgin Islands, whether characterised as
sovereign immunity or otherwise, from any legal proceedings to
enforce the Agreement in respect of itself or its property;
5. This opinion is confined to and given on the basis of the laws of the
British Virgin Islands as they are in force at the date hereof. We have
made no investigation of, and express no opinion on, the laws of any other
jurisdiction that might be applicable to the transaction contemplated by
the Agreement.
6. The opinions set out above are, to the extent that enforcement of the
Agreement, the Custody Agreement or the Power of Attorney is sought in the
courts of the British Virgin Islands, subject to the following
qualifications:
(a) Rights and obligations may be limited by bankruptcy, insolvency,
liquidation, arrangement and other similar laws of the British
Virgin Islands of general application affecting the rights of
creditors.
(b) Equitable remedies such as injunctions and orders for specific
performance are discretionary and will not normally be available
where damages are considered an adequate remedy.
(c) Where obligations are to be performed in a jurisdiction outside the
British Virgin Islands they may not be enforceable under the laws of
the British Virgin Islands to the extent that such performance would
be contrary to public policy under the laws of the British Virgin
Islands.
(d) The courts in the British Virgin Islands will determine in their
discretion whether or not an illegal or unenforceable provision may
be severed.
(e) The courts of the British Virgin Islands may refuse to give effect
to a provision in respect of the cost of unsuccessful litigation
brought before those courts or where the courts themselves have made
an order for costs.
(f) The term "enforceable" means that a document is of a type and in
form enforced by the British Virgin Islands courts. It does not mean
that each obligation will be enforced in accordance with its terms.
Certain rights and obligations may be qualified by the
inconclusiveness of certificates, doctrines of good faith and fair
conduct, the availability of equitable remedies and other matters.
However, in our view, this qualification would not defeat your
legitimate expectations in any material respect.
7
7. This opinion is rendered pursuant to clause 7(e) of the Agreement and is
to your benefit and use and the benefit and use of your legal counsel in
connection with the transactions contemplated by the Documents only. It
may not be divulged to or used by any person or for any other purpose
without our specific written consent.
Yours faithfully
XXXXXX WESTWOOD & RIEGELS
8
