FLEX Flex Ltd

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): August 19, 2024

 

 

FLEX LTD.

(Exact Name of Registrant as Specified in Its Charter)

 

Singapore		0-23354		Not Applicable
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

2 Changi South Lane, Singapore		486123
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code: (65) 6876-9899

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Ordinary Shares, No Par Value		FLEX		The Nasdaq Stock Market LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company

¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

¨

 

 

Entity Address City Or Town

Singapore

 

Item 1.01 Entry into a Material Definitive Agreement.

 

On August 21, 2024, Flex Ltd. (the “Company”) completed its sale of $500,000,000 aggregate principal amount of its 5.250% Notes due 2032 (the “Notes”). The offer and sale of the Notes was registered pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-281573), filed with the Securities and Exchange Commission (the “Commission”) on August 15, 2024. A prospectus supplement relating to the offer and sale of the Notes was filed with the Commission on August 20, 2024.

 

The Notes were issued under an Indenture, dated as of June 6, 2019 (the “Base Indenture”) between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as successor in interest to U.S. Bank National Association, as supplemented by the Sixth Supplemental Indenture, dated as of August 21, 2024 between the Company and the Trustee (the “Sixth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).

 

Interest on the Notes is payable on January 15 and July 15 of each year, beginning on January 15, 2025. The Notes will mature on January 15, 2032. The Company may, at its option, redeem some or all of the Notes at any time by paying the applicable redemption prices set forth in the Indenture. In addition, holders of the Notes may require the Company to repurchase their Notes upon the occurrence of a change of control repurchase event (as defined in the Indenture), unless the Company has previously exercised its right to redeem the Notes as described above. The Notes are senior unsecured obligations of the Company and rank equally with all of the Company’s other existing and future senior and unsecured indebtedness. The Indenture contains certain limited covenants restricting the Company’s ability to incur certain liens, enter into certain sale and leaseback transactions and merge or consolidate with any other entity or convey, transfer or lease all or substantially all of the Company’s properties and assets to another person, which, in each case, is subject to a number of significant limitations and exceptions. The Indenture contains certain other covenants, events of default and other customary provisions.

 

From time to time in the ordinary course of business, the Trustee and affiliates of the Trustee have engaged in and may in the future engage in commercial banking, investment banking and other commercial transactions and services with the Company and its subsidiaries for which they have received or will receive customary fees and commissions. For example, an affiliate of the Trustee is a lender under the Company’s revolving credit facility, an affiliate of the Trustee is one of the underwriters for the offering and sale of the Notes, and the Trustee is the trustee under the indentures governing the Company’s 4.750% Notes due 2025, 3.750% Notes due 2026, 6.000% Notes due 2028, 4.875% Notes due 2029 and 4.875% Notes due 2030.

 

The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Base Indenture, which is incorporated by reference as Exhibit 4.1 to this Current Report on Form 8-K, the Sixth Supplemental Indenture, which is filed as Exhibit 4.2 to this Current Report on Form 8-K and the Notes, the form of which is filed as Exhibit 4.3 to this Current Report on Form 8-K, each of which is incorporated herein by reference.

 

 

Item 8.01 Other Events.

 

On August 19, 2024, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with Barclays Capital Inc., Scotia Capital (USA) Inc., Truist Securities, Inc., and U.S. Bancorp Investments, Inc., as representatives of the several underwriters named in Schedule 1 thereto (collectively, the “Underwriters”), pursuant to which the Company agreed to sell and the Underwriters agreed to purchase, subject to and upon the terms and conditions set forth therein, the Notes. The Underwriting Agreement includes customary representations, warranties and covenants by the Company. It also provides for customary indemnification by each of the Company and the respective Underwriters against certain liabilities arising out of or in connection with the sale of the Notes and for customary contribution provisions in respect of those liabilities.

 

The foregoing summary of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Underwriting Agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

 

	(d) Exhibits
	Exhibit No.
	1.1	Underwriting Agreement, dated as of August 19, 2024, by and among the Company and Barclays Capital Inc., Scotia Capital (USA) Inc., Truist Securities, Inc., and U.S. Bancorp Investments, Inc., as representatives of the underwriters named in Schedule 1 thereto
	4.1	Indenture, dated as of June 6, 2019, by and between the Company and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on June 6, 2019) (SEC File No. 000-23354)
	4.2	Sixth Supplemental Indenture, dated as of August 21, 2024, by and between the Company and U.S. Bank Trust Company, National Association, as trustee
	4.3	Form of 5.250% Global Note due 2032 (included in Exhibit 4.2)
	5.1	Opinion of Allen & Gledhill LLP
	5.2	Opinion of Venable LLP
	23.1	Consent of Allen & Gledhill LLP (included in Exhibit 5.1)
	23.2	Consent of Venable LLP (included in Exhibit 5.2)
	104	Cover Page Interactive Data File (formatted as Inline XBRL)

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	Flex Ltd.
Date: August 21, 2024	By:	/s/ Jaime Martinez
		Name:	Jaime Martinez
		Title:	Interim Chief Financial Officer

 

 

 

Exhibit 1.1

 

Flex Ltd.

 

$500,000,000 5.250% Notes due 2032

 

Underwriting Agreement

 

August 19, 2024

 

Barclays Capital Inc.

Scotia Capital (USA) Inc.

Truist Securities, Inc.

U.S. Bancorp Investments, Inc.

 

As Representatives of the
several Underwriters listed in Schedule 1 hereto

 

c/o Barclays Capital Inc.

745 Seventh Avenue

New York, New York 10019

 

c/o Scotia Capital (USA) Inc.
250 Vesey Street
New York, New York 10281

 

c/o Truist Securities, Inc.
3333 Peachtree Road, 11th Floor
Atlanta, Georgia 30326

 

c/o U.S. Bancorp Investments, Inc.
214 North Tryon Street, 26th Floor
Charlotte, North Carolina 28202

 

Ladies and Gentlemen:

 

Flex Ltd., a Singapore incorporated public company limited by shares and having company registration no. 199002645H, acting (subject to Section 16(m) hereof) through its Bermuda branch having a principal place of business from which it conducts operations in accordance with its permit located at 16 Par-la-Ville Road, Hamilton HM08 Bermuda (the “Company”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $500,000,000 principal amount of its 5.250% Notes due 2032 (the “Securities”). The Securities will be issued pursuant to an Indenture dated as of June 6, 2019 (the “Base Indenture”) between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as successor in interest to U.S. Bank National Association, as amended by a Sixth Supplemental Indenture to be dated as of the Closing Date (as defined below) (the “Sixth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).

 

 

The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:

 

1.             Registration Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-281573), including a prospectus relating to securities (the “Shelf Securities”), including the Securities, to be issued from time to time by the Company. Such registration statement, as amended at the date of this Agreement, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness, is referred to herein as the “Registration Statement” and the related prospectus covering the Shelf Securities dated August 15, 2024 in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with the confirmation of sales of the Securities is referred to herein as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities is hereinafter referred to as the “Prospectus” and the term “Preliminary Prospectus” means any preliminary form of the Prospectus. Any reference in this agreement (this “Agreement”) 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 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. This Agreement, the Securities and the Indenture are hereinafter referred to, collectively, as the “Transaction Documents.” Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.

 

At or prior to 3:00 P.M. New York City time on August 19, 2024, the time when sales of the Securities were first made (the “Time of Sale”), the Company had prepared the following information (collectively, the “Time of Sale Information”): a Preliminary Prospectus dated August 19, 2024, and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.

 

2.             Purchase and Sale of the Securities.

 

(a)           On the basis of the representations, warranties and agreements set forth herein, and subject to the conditions set forth herein, the Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at the price set forth in Schedule 2. The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.

 

 

(b)           The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.

 

(c)           Payment for and delivery of the Securities will be made at the offices of Davis Polk & Wardwell LLP, 1600 El Camino Real, Menlo Park, California 94025 at 10:00 A.M., New York City time, on August 21, 2024, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”.

 

(d)           Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The Depository Trust Company (“DTC”), for the respective accounts of the several Underwriters, of one or more global notes representing the Securities (collectively, the “Global Notes”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Notes will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.

 

(e)           The Company acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Representatives or any Underwriter of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Company, as the case may be, or any other person.

 

3.             Representations and Warranties of the Company. The Company represents and warrants to each Underwriter that:

 

(a)           Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7(b) hereof.

 

 

(b)           Time of Sale Information. The Time of Sale Information, as of the Time of Sale does not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements in or omissions from the Time of Sale Information based upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7(b) hereof. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.

 

(c)           Issuer Free Writing Prospectus. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i) (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, including a Pricing Term Sheet substantially in the form of Annex B hereto, which constitute part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, at the Time of Sale, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements in or omissions from any such Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7(b) hereof.

 

 

(d)           Registration Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the Company’s knowledge, threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7(b) hereof.

 

(e)           Incorporated Documents. The documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information, when such incorporated documents were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(f)            Exchange Act Compliance. The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.

 

(g)           Investment Company Act. The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Time of Sale Information and the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

 

(h)           No Solicitation. The Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any Securities (except as contemplated in this Agreement).

 

(i)            No Stabilization. The Company has not taken, directly or indirectly, any action designed to or that has constituted or that would reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

 

(j)            No Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus, (i) there has not been any material change in the capitalization or long-term debt of the Company and its subsidiaries, taken as a whole, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case of clauses (i) through (iii) above as otherwise disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus.

 

(k)           Organization and Good Standing. The Company and each of the Subsidiaries (as defined below) has been duly chartered, organized or incorporated, as the case may be, and is validly existing as a corporation or other business entity and, in any jurisdiction where such legal concept is applicable, in good standing under the laws of the jurisdiction in which it is chartered, organized or incorporated, as the case may be, with full corporate or other organizational power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, and is duly qualified to do business as a foreign corporation or other business entity and, in any jurisdiction where such legal concept is applicable, is in good standing under the laws of each jurisdiction that requires such qualification, except where any such failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below).

 

(l)            Capitalization. The Company had, as of June 28, 2024, the capitalization as set forth in each of the Time of Sale Information and the Prospectus under the heading “Capitalization” in the column labeled “As of June 28, 2024 – Actual”; and all the outstanding shares of capital stock or other ownership interests of the Company and each of the Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable (where such concepts or functional equivalents are applicable), and, except as otherwise set forth in each of the Registration Statement, the Time of Sale Information and the Prospectus, all outstanding shares of capital stock or other ownership interests of each of the subsidiaries listed on Schedule 3 hereto (individually, a “Subsidiary” and collectively, the “Subsidiaries”) are owned by the Company either directly or through wholly owned subsidiaries free and clear of any security interest, claim, lien or encumbrance.

 

 

(m)          Prospectus Statements. The statements in the Time of Sale Information and the Prospectus under the headings “Material Tax Consequences” and “Description of Notes” and the statements in the Company’s Annual Report on Form 10-K for the fiscal year ended March 31, 2024 incorporated by reference into the Preliminary Prospectus and the Prospectus under the headings “Item 1. Business—Environmental Regulation”, “Item 1. Business—Intellectual Property” and “Item 3. Legal Proceedings”, as supplemented by the Company’s Quarterly Report on Form 10-Q for the quarter ended June 28, 2024, fairly summarize the matters therein described in all material respects, subject to the qualifications and assumptions stated therein.

 

(n)           Due Authorization. This Agreement has been duly authorized, executed and delivered by the Company; the Indenture has been duly authorized by the Company, and assuming due authorization, execution and delivery thereof by the Trustee, when executed and delivered by the Company, will constitute a legal, valid, binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency (including without limitation, all laws relating to fraudulent transfers), moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); and the Securities have been duly authorized by the Company, and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency (including without limitation, all laws relating to fraudulent transfers), moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).

 

(o)           No Consents Required. No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture, except (i) such as may be required under the securities or blue sky laws of any jurisdiction in which the Securities are offered and sold or (ii) such consents, approvals, authorizations or filings that have been, or prior to the Closing Date will be, obtained or made.

 

(p)           No Conflicts. None of the execution and delivery of this Agreement or the Indenture, the issuance and sale of the Securities, or the consummation of any other of the transactions herein or therein contemplated, or the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws or comparable constituent documents of the Company or any of its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, except in the cases of clauses (ii) and (iii) above as would not reasonably be expected to have a Material Adverse Effect.

 

 

(q)           Financial Statements. The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the financial condition, results of operations and cash flows of the Company and its consolidated subsidiaries as of the dates and for the periods indicated, comply as to form in all material respects with the applicable accounting requirements of Regulation S-X and have been prepared in conformity with generally accepted accounting principles in the United States of America applied on a consistent basis throughout the periods involved (except as otherwise noted therein); and the selected financial data set forth under the caption “Summary—Summary Historical Consolidated Financial Data” in the Time of Sale Information and the Prospectus fairly present in all material respects, on the basis stated in the Time of Sale Information and the Prospectus, the information included or incorporated by reference therein. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus fairly present the information called for in all material respects and has been prepared in all material respects in accordance with the Commission’s rules and guidelines applicable thereto.

 

(r)            Legal Proceedings. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or their property (an “Action”) is pending or, to the knowledge of the Company, threatened that (i) would reasonably be expected to have a material adverse effect on the performance of this Agreement, the Indenture, the Securities or the consummation of any of the transactions contemplated hereby or thereby or (ii) would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”), except as set forth in or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and (i) there are no current or pending Actions that are required under the Securities Act to be described in the Registration Statement or the Prospectus that are not so described in the Registration Statement, the Time of Sale Information and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement and the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale Information and the Prospectus.

 

(s)           Title to Real and Personal Property. The Company and each of the Subsidiaries owns or leases or has valid rights to use all such properties as are necessary to the conduct of its operations as presently conducted, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

 

(t)            No Violation or Default. Neither the Company nor any of the Subsidiaries is in violation or default of (i) any provision of its charter or bylaws or comparable constituting documents; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Subsidiary or any of its properties, as applicable, except in the case of clauses (ii) and (iii), to the extent any such violation or default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(u)           Independent Accountants. Deloitte & Touche LLP, who has certified certain financial statements of the Company and its consolidated subsidiaries and delivered its reports with respect to the audited and unaudited consolidated financial statements and schedules included or incorporated by reference in the Registration Statement, is an independent registered public accounting firm within the meaning of the Exchange Act and the Securities Act and the rules of the Public Company Accounting Oversight Board.

 

(v)           No Stamp Taxes. There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale of the Securities.

 

(w)          Taxes. The Company and each Subsidiary has filed all applicable tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not reasonably be expected to have a Material Adverse Effect or except as set forth in or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus) and has paid all taxes required to be paid by it (including any taxes required to be withheld by it) and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty that is currently being contested in good faith and as to which appropriate reserves have been established in accordance with generally accepted accounting principles or as would not reasonably be expected to have a Material Adverse Effect or except as set forth in or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus.

 

(x)            No Withholding Tax. All payments to be made by the Company on or by virtue of the execution, delivery, performance or enforcement of the Underwriting Agreement under the current laws and regulations of the United States of America, Singapore or Bermuda or any political subdivision thereof (each, a “Taxing Jurisdiction”), will not be subject to withholding, duties, levies, deductions, charges or other taxes under the current laws and regulations of the Taxing Jurisdiction and are otherwise payable free and clear of any other withholding, duty, levy, deduction, charge or other tax in the Taxing Jurisdiction and without the necessity of obtaining any governmental authorization in the Taxing Jurisdiction.

 

(y)           No Taxation. None of the holders of the Securities, the Underwriters or the Trustee will be deemed resident, domiciled, carrying on a business or subject to taxation in Bermuda or Singapore on an overall income basis solely by the execution, delivery, performance or enforcement of this Agreement or the issuance or sale of the Securities or by virtue of the ownership or transfer of Securities or the receipt of payments under this Agreement.

 

 

(z)            No Labor Disputes. No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not reasonably be expected to have a Material Adverse Effect and except as set forth in or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus.

 

(aa)         Insurance. (i) The Company and each of its subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; (ii) all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; (iii) the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; (iv) there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; (v) neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for, except in the cases of subclauses (i) through (v) as would not reasonably be expected to have a Material Adverse Effect; and (vi) the Company and its subsidiaries believe that they will be able to renew their existing insurance coverage as and when such coverage expires or obtain similar coverage from similar insurers as may be necessary to continue their business at a cost that would not reasonably be expected to have a Material Adverse Effect; except in the cases of subclauses (i) through (vi) as set forth in or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus.

 

(bb)         Licenses and Permits. The Company and the Subsidiaries possess all licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective businesses in the manner described in each of the Registration Statement, the Time of Sale Information and the Prospectus, except for any of the foregoing that would not, in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus.

 

(cc)         Accounting Controls. The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States of America and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information is prepared in accordance with the Commission’s rules and guidelines applicable thereto. The Company and its subsidiaries are not aware of any material weakness in their internal control over financial reporting and since the end of the Company’s most recent fiscal year, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

 

(dd)         Disclosure Controls. The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are effective to perform the functions for which they were established to the extent required by Rule 13a-15 of the Exchange Act.

 

(ee)         Certain Environmental Matters. The Company and its subsidiaries are (i) in compliance with any and all applicable laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) have not received notice of any actual or potential liability under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive or comply with required permits, licenses or other approvals, or liability would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and except as set forth in or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus. Except as set forth in each of the Registration Statement, the Time of Sale Information and the Prospectus, and except with respect to any matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its subsidiaries has received written notice that it is a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

 

(ff)           Further Environmental Matters. In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties); on the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus.

 

(gg)         Compliance with ERISA. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (A) the minimum funding standard under Section 302 of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (“ERISA”), has been satisfied by each “pension plan” (as defined in Section 3(2) of ERISA) which has been established or maintained by the Company and/or one or more of its subsidiaries, and the trust forming part of each such plan which is intended to be qualified under Section 401 of the Code is so qualified; (B) each of the Company and its subsidiaries has fulfilled its obligations, if any, under Section 515 of ERISA; (C) neither the Company nor any of its subsidiaries maintains or is required to contribute to a “welfare plan” (as defined in Section 3(1) of ERISA) which provides retiree or other post-employment welfare benefits or insurance coverage (other than “continuation coverage” (as defined in Section 602 of ERISA)); (D) each pension plan and welfare plan established or maintained by the Company and/or one or more of its subsidiaries is in compliance in all material respects with the currently applicable provisions of ERISA; and (E) neither the Company nor any of its subsidiaries has incurred or could reasonably be expected to incur any withdrawal liability under Section 4201 of ERISA, any liability under Section 4062, 4063, or 4064 of ERISA, or any other liability under Title IV of ERISA.

 

 

(hh)         Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the money laundering statutes and the rules of all applicable jurisdictions and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

(ii)            No Conflicts with Sanctions Laws. None of the Company, any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is, or is directly or indirectly owned or controlled by, an individual or entity (a “Person”) that is, (A) currently the subject of any sanctions (i) administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury and the Foreign and Commonwealth Office of the United Kingdom, or other relevant sanctions authority, or (ii) pursuant to the U.S. Iran Sanctions Act, as amended (collectively, “Sanctions”), nor (B) located or organized within, or doing business or operating from, a country or territory that is, or whose government is, the subject of Sanctions (including, without limitation, the so called Donetsk People’s Republic, the so called Luhansk People’s Republic and any other Covered Region of Ukraine identified pursuant to Executive Order 14065, the Crimea Region of Ukraine, the non-government controlled areas of Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea and Syria) (each such country or territory, a “Sanctioned Country”).  The Company will not directly or indirectly use the proceeds from the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, for the purpose of financing any activities or business of or with any Person, or in any country or territory, that, at the time of such financing, is the subject of Sanctions. For the past ten years, neither the Company nor, to the knowledge of the Company or its directors or officers, any of its subsidiaries have knowingly engaged in or are now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.

 

 

(jj)           Sarbanes-Oxley Act. The Company and, to the knowledge of the Company, the Company’s directors or officers, in their capacities as such, are in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 relating to loans and Sections 302 and 906 relating to certifications.

 

(kk)         No Unlawful Payments. None of the Company, its directors or officers nor, to the knowledge of the Company or its directors and officers, any of its subsidiaries or any other agent, employee or affiliate of the Company or any of its subsidiaries acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that violates the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) or the U.K. Bribery Act 2010 or similar law of any other relevant jurisdiction (collectively, the “Anti-Bribery Laws”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the Anti-Bribery Laws; and each of the Company, its subsidiaries and, to the knowledge of the Company, their respective controlled affiliates have conducted their businesses in material compliance with the Anti-Bribery Laws and the Company has instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

(ll)           Compliance with Export Control Laws. (a) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, the export control statutes of all jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Export Control Laws”), and (b) except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Export Control Laws is pending or, to the knowledge of the Company, threatened, except as would not reasonably be expected to have a Material Adverse Effect. The Company, its subsidiaries and its controlled affiliates have instituted and maintain policies and procedures designed to ensure that the Company is in material compliance with applicable Export Control Laws. The Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund any activities or business that, at the time of such funding, is prohibited under any Export Control Laws or (ii) in any other manner, in each case as will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Export Control Laws.

 

 

(mm)       Intellectual Property. The Company and its subsidiaries own, possess the right to use, license the right to use, or have other rights to use (in each case free and clear of all adverse claims, liens or other encumbrances, except for such adverse claims, liens or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect), or can acquire on reasonable terms the rights to use, all patents, trade and service marks, trade names, copyrights, domain names (in each case including all registrations and applications to register the same), inventions, trade secrets, software, algorithms, machine learning models, large language models, technology, know-how, and all other intellectual property (collectively, “Intellectual Property”) material to the conduct of their respective businesses as now conducted or as proposed in each of the Registration Statement, the Time of Sale Information and the Prospectus to be conducted. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by any third party challenging the Company’s or its subsidiaries’ rights in or to any such Intellectual Property; (ii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by any third party challenging the validity, scope or enforceability of any such Intellectual Property; and (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by any third party that the Company or any of its subsidiaries infringes, misappropriates or otherwise violates any patent, trademark, copyright, trade secret, Intellectual Property or other proprietary rights of any third party.

 

(nn)        Cybersecurity; Data Protection. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, and to the knowledge of the Company, are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their respective businesses, and, to the knowledge of the Company, there have been no breaches, violations, outages or unauthorized uses of, accesses to or other compromises of the same, except for those that have been remedied without material cost or liability or the duty to notify any other person (other than those notifications provided in accordance with applicable law and which did not result in material cost or liability), nor any material incidents under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal and external privacy and security policies, binding industry standards and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification. The Company and its subsidiaries have taken all necessary actions to comply in all material respects with the European Union General Data Protection Regulation (and to prepare to comply with all applicable laws and regulations with respect to Personal Data that have been announced as of the date hereof as becoming effective within 12 months after the date hereof, and for which any non-compliance with same would be reasonably likely to create a material liability) as soon as they take effect.

 

(oo)        No Immunity. Under the laws of the jurisdiction of its incorporation, the Company would not be entitled to invoke immunity (sovereign or otherwise) from jurisdiction or immunity (sovereign or otherwise) from execution in respect of any action arising out of its obligations under this Agreement.

 

 

(pp)         Certificates. Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby (and is subject to the limitations therein, if any), to each Underwriter.

 

(qq)         Status under the Securities Act. The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.

 

(rr)           No Restrictions on Subsidiaries. No Subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from making any dividends or other distribution on such Subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s properties or assets to the Company or any other Subsidiary of the Company, except in each case as would not reasonably be expected to have a material adverse effect on the ability of the Company to perform its obligations under the Transaction Documents or except as described in or contemplated in the Registration Statement, the Time of Sale Information or the Prospectus.

 

(ss)        No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.

 

4.             Further Agreements of the Company. The Company covenants and agrees with each Underwriter that:

 

(a)           Required Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet substantially in the form of Annex B hereto) to the extent required by Rule 433 under the Securities Act; and the Company will file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.

 

 

(b)           Delivery of Copies. The Company will deliver, without charge, to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus, in each case, as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.

 

(c)           Amendments or Supplements; Issuer Free Writing Prospectuses. Before using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus (other than documents incorporated by reference therein), whether before or after the time that the Registration Statement becomes effective, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object in a timely manner; provided, however, that during the Prospectus Delivery Period, the Company will not file any document under the Exchange Act that is incorporated by reference in the Registration Statement or the Prospectus unless, prior to such proposed filing, the Company has furnished the Representatives with a copy of such document for its review and the Representatives have not reasonably objected to the filing of such document; provided further that the Company shall be entitled to file any such document to the extent that counsel for the Company deems such filing to be required in order to comply with applicable law. During the Prospectus Delivery Period, the Company will promptly advise the Representatives when any document filed under the Exchange Act that is incorporated by reference in the Registration Statement or the Prospectus shall have been filed with the Commission.

 

(d)           Notice to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus, any Time of Sale Information or any Issuer Free Writing Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period and known to the Company as a result of which the Prospectus, any of the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Time of Sale Information, Issuer Free Writing Prospectus or the Prospectus, or suspending any such qualification of the Securities and, if any such order is issued, will use its reasonable best efforts to obtain as soon as possible the withdrawal thereof.

 

 

(e)           Time of Sale Information. If at any time prior to the Closing Date (i) any event occurs or condition exists as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements to the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law.

 

(f)            Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented including such documents to be incorporated by reference therein will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.

 

(g)           Blue Sky Compliance. The Company will use reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.

 

 

(h)           Earnings Statement. The Company will make generally available to its security holders and the Representatives as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.

 

(i)            Clear Market. During the period from the date hereof through and including the date that is the day after the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, otherwise dispose of or enter into any transaction which is designed or would reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, or announce the offering, of any debt securities issued or guaranteed by the Company and having a tenor of more than one year.

 

(j)            Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of Proceeds”.

 

(k)           DTC. The Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.

 

(l)            No Stabilization. The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.

 

(m)          Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.

 

5.             Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:

 

(a)           It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Company.

 

 

(b)          It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).

 

6.            Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:

 

(a)          Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding, for such purpose or pursuant to Section 8A under the Securities Act, shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.

 

(b)          Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.

 

(c)          No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).

 

(d)          No Material Adverse Change. No event or Material Adverse Effect shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.

 

(e)          Officers’ Certificate. The Representatives shall have received on and as of the Closing Date a certificate of (x) the chief executive officer of the Company and (y) the principal financial or accounting officer of the Company (i) confirming that such officers have carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the knowledge of such officer, the representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company set forth in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.

 

 

(f)            Comfort Letters. On the date of this Agreement and on the Closing Date, Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.

 

(g)           Opinion and 10b-5 Statement of Counsel for the Company. Venable LLP, special U.S. counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex C hereto.

 

(h)           Opinion of Local Counsel. Allen & Gledhill LLP, special Singapore counsel for the Company, shall have furnished to the Representatives, at the request of the Company, its written opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex D hereto.

 

(i)            Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement, addressed to the Representatives, of Davis Polk & Wardwell LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.

 

(j)            No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.

 

(k)           Good Standing. The Representatives shall have received on and as of the Closing Date or no more than two (2) business days prior thereto satisfactory evidence of the good standing of the Company, in writing or any standard form of telecommunication, from the appropriate governmental authority of such jurisdiction.

 

(l)            DTC. The Securities shall be eligible for clearance and settlement through DTC.

 

 

(m)          Indenture and Securities. The Indenture shall have been duly executed and delivered by a duly authorized officer of the Company and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.

 

(n)           Additional Documents. On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.

 

All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

 

7.             Indemnification and Contribution.

 

(a)           Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers, employees and agents and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities, joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in subsection (b) below.

 

(b)           Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors and officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any written information furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the following in the Preliminary Prospectus and the Prospectus under the caption “Underwriting (Conflicts of Interest)”: (i) the information contained in the third paragraph, (ii) the information contained in the third sentence of the sixth paragraph and (iii) the information contained in the seventh paragraph.

 

 

(c)           Notice and Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties (such consent not to be unreasonably withheld, conditioned or delayed), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (x) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (y) does not include any statement as to or any finding of fault, culpability or failure to act by or on behalf of any indemnified person. An indemnifying party will not be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.

 

 

(d)           Contribution. In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, damage, liability or action) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions. Relative fault shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7(d) are several in proportion to their respective purchase obligations set forth on Schedule 1 hereto and not joint. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).

 

8.             Effectiveness of Agreement. This Agreement shall become effective as of the date first written above.

 

9.             Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by written notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on The New York Stock Exchange or The Nasdaq Global Select Market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended or limited on The Nasdaq Global Select Market; (iii) a general moratorium on commercial banking activities shall have been declared by U.S. federal, New York State or Singapore authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States or Singapore of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make it, in the judgment of the Representatives, impractical or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.

 

 

10.           Defaulting Underwriter.

 

(a)           If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.

 

(b)           If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-tenth of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.

 

(c)           If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-tenth of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.

 

(d)           Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.

 

 

11.           Payment of Expenses.

 

(a)           Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with the approval of the Securities for book-entry transfer by DTC; (ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors; (x) the preparation, printing, authentication, issuance and delivery of certificates for the Securities and (xi) any stamp or transfer taxes in connection with the original issuance and sale of the Securities. Except as expressly provided elsewhere herein, the Underwriters will pay all of their own costs and expenses, including without limitation the fees and expenses of their counsel.

 

(b)           If (i) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (ii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement (other than by termination of this Agreement pursuant to Section 9(i), 9(iii) or 9(iv) or for failure of the condition set forth in Section 6(i)), the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.

 

12.           Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto; provided, that the benefit of Section 7 hereof shall inure to the benefit of the parties hereto and their respective successors and the officers and directors and any controlling persons referred to therein, and the affiliates of each Underwriter. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.

 

13.           Survival. The respective indemnities, rights of contribution, representations, warranties (it being understood that such representations and warranties are made only as of the date hereof and as of the date of any officers’ certificate delivered pursuant to Section 6(e)) and agreements of the Company and the Underwriters contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters. The provisions of Sections 7 and 12 through 16 hereof shall survive the termination or cancellation of this Agreement.

 

 

14.           Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.

 

15.           Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

 

16.           Miscellaneous.

 

(a)           Authority of the Representatives. Any action by the Underwriters hereunder may be taken by Barclays Capital Inc., Scotia Capital (USA) Inc., Truist Securities, Inc. and U.S. Bancorp Investments, Inc. on behalf of the Underwriters, and any such action taken by Barclays Capital Inc., Scotia Capital (USA) Inc., Truist Securities, Inc. and U.S. Bancorp Investments, Inc. shall be binding upon the Underwriters.

 

(b)           Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration, Fax: (646) 834-8133; c/o Scotia Capital (USA) Inc., 250 Vesey Street, New York, New York 10281, Attention: Debt Capital Markets / Chief Legal Officer, U.S., Email: US.Legal@scotiabank.com; c/o Truist Securities, Inc., 3333 Peachtree Road, 11th Floor, Atlanta, Georgia 30326, Attn: Legal Department; and c/o U.S. Bancorp Investments, Inc., 214 North Tryon Street, 26th Floor, Charlotte, North Carolina 28202 (fax: (704) 335-2393), Attention: Debt Capital Markets. Notices to the Company shall be given to it at: Flex Ltd., 12455G Research Blvd, Austin, TX 78759, United States of America, Attention: General Counsel (fax: (408) 935-8147).

 

(c)           Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.

 

 

(d)           Submission to Jurisdiction. Any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and each party hereto waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding. The Company hereby appoints C T Corporation System, with offices on the date hereof at 28 Liberty Street, New York, New York 10005, as their authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein that may be instituted in any State or U.S. federal court in The City of New York and County of New York, by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Company hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company.

 

(e)           Currency. Each reference in this Agreement to U.S. dollars (the “relevant currency”), including by use of the symbol “$”, is of the essence. To the fullest extent permitted by law, the obligation of any party hereto in respect of any amount due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the business day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the party owing such obligation will pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. Any obligation not discharged by such payment will, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.

 

(f)            Waiver of Immunity. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to themselves or any of their property, the Company hereby irrevocably waives and agrees not to plead or claim such immunity in respect of their obligations under this Agreement.

 

(g)           Waiver of Jury Trial. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

(h)           Recognition of the U.S. Special Resolution Regimes.

 

(i)            In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

 

(ii)           In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

As used in this Section 16(h):

 

“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

“Covered Entity” means any of the following:

 

(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

(i)            Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof.

 

(j)            Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

 

(k)            Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

 

 

(l)            Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.

 

(m)          Bermuda Branch; Full Recourse Obligations. All obligations of the Company hereunder shall be incurred by the Company at its Bermuda branch having a principal place of business from which it conducts operations in accordance with its permit located at 16 Par-la-Ville Road, Hamilton HM 08 Bermuda and all such obligations by the Company will be made through its Bermuda branch; provided, however, that notwithstanding the foregoing, the Company acknowledges and agrees that the obligations hereunder are full recourse to Flex Ltd., a Singapore public company limited by shares, and are in no manner limited to any extent to any branch thereof and shall in no manner impair the Representatives’ ability or the ability of any person identified in Section 12 hereof to enforce or collect any such obligation from the Company.

 

(n)           Other Liabilities Governed by Non-EEA Law / Non-UK Law. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the parties hereto, each counterparty to a BRRD Party acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:

 

(a)   the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any BRRD Party to it under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:

 

(i)      the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;

 

(ii)     the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant BRRD Party or another person, and the issue to or conferral on it of such shares, securities or obligations;

 

(iii)    the cancellation of the BRRD Liability; and

 

(iv)    the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and

 

(b)   the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.

 

The terms which follow, when used in this Section 16(n), shall have the meanings indicated.

 

 

“Bail-in Legislation” means in relation to the UK and a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time

 

“Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.

 

“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.

 

“BRRD Party” means any Underwriter subject to Bail-in Powers.

 

“BRRD Liability” means a liability in respect of which the relevant Write-down and Conversion Powers in the applicable Bail-in Legislation may be exercised.

 

“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499.

 

“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the relevant BRRD Party.

 

(c)      For the avoidance of doubt, to the extent an Underwriter’s obligation to purchase Securities hereunder constitutes a BRRD Liability and such Underwriter does not, on the Closing Date, purchase the full amount of the Securities that it has agreed to purchase hereunder due to the exercise by the Relevant Resolution Authority of its powers under the relevant Bail-in Legislation with respect to such BRRD Liability, such Underwriter shall be deemed, for all purposes of Section 10 of this Agreement, to have defaulted on its obligation to purchase such Securities that it has agreed to purchase hereunder but has not purchased, and Section 10 of this Agreement shall remain in full force and effect with respect to the obligations of the other Underwriters.

 

 

If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.

 

	Very truly yours,
	FLEX LTD.
	By:	/s/ B. Vijayandran A/L S. Balasingam
		Name:	B. Vijayandran A/L S. Balasingam
		Title:	Authorized Signatory

 

[Signature Page to Underwriting Agreement]

 

 

Accepted: As of the date first written above

 

BARCLAYS CAPITAL INC.

SCOTIA CAPITAL (USA) INC.

TRUIST SECURITIES, INC.

U.S. BANCORP INVESTMENTS, INC.

 

For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.

 

BARCLAYS CAPITAL INC.
By:	/s/ Matt Gannon
	Name:	Matt Gannon
	Title:	Managing Director
SCOTIA CAPITAL (USA) INC.
By:	/s/ Michael Ravanesi
	Name:	Michael Ravanesi
	Title:	Managing Director & Head
TRUIST SECURITIES, INC.
By:	/s/ Robert Nordlinger
	Name:	Robert Nordlinger
	Title:	Authorized Signatory
U.S. BANCORP INVESTMENTS, INC.
By:	/s/ Vanessa Clark
	Name:	Vanessa Clark
	Title:	Vice President

 

[Signature Page to Underwriting Agreement]

 

 

Schedule 1

 

Underwriter		Principal Amount of Securities
Barclays Capital Inc.		$	82,500,000
Scotia Capital (USA) Inc.			82,500,000
Truist Securities, Inc.			82,500,000
U.S. Bancorp Investments, Inc.			82,500,000
BNP Paribas Securities Corp.			20,000,000
BofA Securities, Inc.			20,000,000
HSBC Securities (USA) Inc.			20,000,000
Mizuho Securities USA LLC			20,000,000
PNC Capital Markets LLC			20,000,000
UniCredit Capital Markets LLC			20,000,000
Academy Securities, Inc.			10,000,000
BBVA Securities Inc.			5,000,000
Deutsche Bank Securities Inc.			5,000,000
J.P. Morgan Securities LLC			5,000,000
KeyBanc Capital Markets Inc.			5,000,000
Loop Capital Markets LLC			5,000,000
Mischler Financial Group, Inc.			5,000,000
MUFG Securities Americas Inc.			5,000,000
SMBC Nikko Securities America, Inc..			5,000,000
Total		$	500,000,000

 

 

Schedule 2

 

$500,000,000 5.250% Notes due 2032

 

Purchase Price by Underwriters:

 

99.156% of the principal amount plus accrued interest, if any, from August 21, 2024 to the Closing Date.

 

 

Schedule 3

 

Subsidiaries

 

Flextronics America, LLC

Flextronics Automotive USA (Texas), LLC

Flextronics Computing (Suzhou) Co., Ltd

Flextronics Electronics Technology (Suzhou) Co., Ltd.

Flextronics International Asia-Pacific Ltd

Flextronics International Europe B.V.

Flextronics International Gesellschaft m.b.H.

Flextronics International Kft.

Flextronics International Poland sp. z o.o.

Flextronics International Tecnologia Ltda.

Flextronics International USA, Inc.

Flextronics (Israel) Ltd.

Flextronics Logistics (Hong Kong) Limited

Flextronics Logistics USA, Inc.

Flextronics Manufacturing Europe B.V.

Flextronics Manufacturing (Singapore) Pte. Ltd.

Flextronics Manufacturing S.r.l.

Flextronics Marketing (L) Ltd.

Flextronics ODM Luxembourg S.A.

Flextronics Sales & Marketing (A-P) Ltd.

Flextronics Sales & Marketing North Asia (L) Ltd.

Flextronics Technologies (India) Private Limited

Flextronics Technology (Penang) Sdn. Bhd.

Flextronics Telecom Systems Ltd

Pacific Device, Inc.

Power Systems Technologies Ltd.

Mirror Controls (Suzhou) Co., Ltd.

Flextronics Automotive USA Manufacturing Co.

Flextronics Logistics B.V.

MCi (Mirror Controls International) Ireland Limited

Anord Mardix (Ireland) Limited

Anord Mardix (UK) Limited

Anord Mardix (USA) Inc.

Flextronics Logistics Poland Sp. z o.o.

 

 

ANNEX A

 

Time of Sale Information

 

·

Pricing Term Sheet, dated August 19, 2024

 

 

ANNEX B

 

Filed pursuant to Rule 433

Registration Statement No. 333-281573

Issuer Free Writing Prospectus dated August 19, 2024

Relating to Preliminary Prospectus Supplement dated August 19, 2024

 

 

 

Flex Ltd.

 

Pricing Term Sheet

 

Issuer:	Flex Ltd. (“Flex”)
Ticker:	FLEX
Expected Ratings (Moody’s/S&P/Fitch)*:	[INTENTIONALLY OMITTED]
Security Type:	SEC Registered
Securities Offered:	5.250% Notes due 2032 (the “Notes”)
Trade Date:	August 19, 2024
Settlement Date**:	August 21, 2024 (T+2)
Minimum Denominations:	$2,000 and integral multiples of $1,000 in excess thereof
Day Count:	30/360
Use of Proceeds:	Flex intends to use the net proceeds to repay or redeem our 4.750% Notes due June 2025 at or prior to their maturity, with the remaining proceeds, if any, to be used for general corporate purposes, which may include repaying, redeeming or repurchasing outstanding debt and for working capital, capital expenditures and acquisitions.
Principal Amount:	$500,000,000
Maturity Date:	January 15, 2032
Coupon:	5.250%
Interest Payment Dates:	January 15 and July 15, commencing January 15, 2025
Public Offering Price:	99.781% of the Principal Amount. The public offering price will include accrued interest from August 21, 2024, if settlement occurs after that date.
Net Proceeds (after underwriting discount but before expenses):	$495,780,000
Benchmark Treasury:	UST 4.125% due July 31, 2031
Benchmark Treasury Price/Yield:	102-01+/3.787%
Spread to Benchmark Treasury:	+150 bps
Yield to Maturity:	5.287%
Make-Whole Call:	At any time prior to November 15, 2031 at a discount rate of Treasury plus 25 basis points
Par Call Date:	On or after November 15, 2031
CUSIP:	33938X AF2
ISIN:	US33938XAF24
Joint Book-Running Managers	Barclays Capital Inc. Scotia Capital (USA) Inc. Truist Securities, Inc. U.S. Bancorp Investments, Inc. BNP Paribas Securities Corp. BofA Securities, Inc. HSBC Securities (USA) Inc. Mizuho Securities USA LLC PNC Capital Markets LLC UniCredit Capital Markets LLC
Co-Managers	Academy Securities, Inc. BBVA Securities Inc. Deutsche Bank Securities Inc. J.P. Morgan Securities LLC KeyBanc Capital Markets Inc. Loop Capital Markets LLC Mischler Financial Group, Inc. MUFG Securities Americas Inc. SMBC Nikko Securities America, Inc.

 

 

* [INTENTIONALLY OMITTED]

 

**Under Rule 15c6-1 of the Securities Exchange Act of 1934, as amended, trades in the secondary market are required to settle in one business day, unless the parties to a trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes prior to the first business day preceding the settlement date will be required, by virtue of the fact that the notes initially will settle in T+2, to specify alternative settlement arrangements to prevent a failed settlement. Purchasers who wish to trade the notes prior to one business day preceding the expected settlement date should consult their advisors in this regard.

 

The issuer has filed a registration statement (including a prospectus) and a preliminary prospectus supplement with the Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the related preliminary prospectus supplement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Barclays Capital Inc. at 1-888-603-5847 or emailing barclaysprospectus@broadridge.com, by calling Scotia Capital (USA) Inc. toll-free at 1-800-372-3930, by calling Truist Securities, Inc. toll-free at 1-800-685-4786, or by calling U.S. Bancorp Investments, Inc. at 1-877-558-2607.

 

ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM. 

 

 

ANNEX C

 

Form of Opinion of Venable LLP

 

1.

The Notes, when issued and authenticated in accordance with the terms of the Notes Indenture and issued and delivered by the Company against payment of the purchase price therefor in accordance with the Underwriting Agreement, will conform in all material respects to the statements relating thereto contained in the Time of Sale Information and the Final Prospectus.

 

2.

The execution and delivery of the Notes Indenture and the Underwriting Agreement by the Company do not, and the performance by the Company thereunder will not (i) conflict with or result in a breach of or default under any of the agreements identified on Schedule A attached hereto (the “Material Agreements”), (ii) violate any provision of any Applicable Law of the State of New York or any Applicable Law of the federal laws of the United States, or (iii) result in an imposition of any lien, charge or encumbrance under the provisions of any of the Material Agreements upon any property, asset or revenue of the Company.

 

3.

The execution and delivery by the Company of the Notes Indenture and the Underwriting Agreement do not, and the performance by the Company thereunder will not, require any filing with or approval by any governmental authority or regulatory body of the State of New York or the United States of America under any Applicable Law, except (i) as disclosed in the Final Prospectus, (ii) as have been made or obtained prior to the date hereof, or (iii) as may be required under the securities or “blue sky” laws of any jurisdiction in connection with the offer and sale of the Notes.

 

4.

The Notes Indenture constitutes a valid and binding obligation enforceable against the Company in accordance with its terms. When the Notes have been (a) duly authenticated and delivered by the Trustee in accordance with the Notes Indenture and (b) issued and delivered by the Company against payment of the purchase price therefor in accordance with the Underwriting Agreement, the Notes will constitute valid and binding obligations enforceable against the Company in accordance with their terms.

 

5.

The Registration Statement is effective under the Securities Act, and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.

 

6.

The Registration Statement, as of August 19, 2024, and the Final Prospectus as of its date, each appeared on its face to comply as to form in all material respects with the applicable form requirements for registration statements on Form S-3 under the Securities Act and the rules and regulations thereunder; it being understood, however, that we express no opinion as to Regulation S-T or the financial statements and related notes, financial statement schedules or other financial or accounting data and information included in, incorporated by reference in, or omitted from, the Registration Statement or the Final Prospectus.

 

 

7.

The Company is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Final Prospectus will not be, required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended.

 

8.

The statements in the Time of Sale Information and the Final Prospectus under the heading “Material Tax Consequences - Certain U.S. Federal Income Tax Considerations,” insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, accurately summarize the matters referred to therein in all material respects.

 

9.

Under the laws of the State of New York relating to the submission to personal jurisdiction, (i) the Company has, pursuant to Section 16(d) of the Underwriting Agreement, Section 1.12 of the Base Indenture and Section 7.03 of the Sixth Supplemental Indenture, validly submitted to the personal jurisdiction of New York State courts and United States of America federal courts located in the City of New York and County of New York in actions arising out of or based upon the Underwriting Agreement, the Base Indenture or the Supplemental Indenture, as the case may be, (ii) the Company validly appointed C T Corporation System for the purpose described in Section 16(d) of the Underwriting Agreement and Section 7.03 of the Sixth Supplemental Indenture, and (iii) service of process effected on C T Corporation System in the manner set forth in Section 16(d) of the Underwriting Agreement and Section 7.03 of the Sixth Supplemental Indenture will be effective to confer valid personal jurisdiction over the Company under the laws of the State of New York in connection with any such action.

 

10.

Insofar as the statements in the Final Prospectus under the caption “Description of Notes” purport to describe specific provisions of the Notes Indenture and the Notes, such statements present in all material respects an accurate summary of such provisions.

 

 

ANNEX D

 

Form of Opinion of Allen & Gledhill LLP

 

1.

The Company has been duly incorporated and is validly existing as a company under the laws of the Republic of Singapore;

 

2.

The Company has the corporate power and capacity to own or lease its property and to conduct its business as described in the Prospectus;

 

3.

No consent, approval, authorisation or order of or qualification with any governmental body or agency or stock exchange authority in the Republic of Singapore is required under the laws of the Republic of Singapore for the consummation of the transactions contemplated by the Transaction Documents and the issue and delivery of the Notes, except such as have been obtained and are in full force and effect;

 

4.

The consummation of the transactions contemplated in the Transaction Documents and the issue and offering of the Notes (a) have been, in the case of transactions to which the Company is a party, duly authorised by the Company, and (b) do not contravene (1) any provision of the securities laws of the Republic of Singapore applicable to companies generally, (2) the Constitution of the Company, or (3) as far as we are aware, any judgment, order or decree of any governmental body, agency or court of the Republic of Singapore having jurisdiction over the Company or any of its assets;

 

5.

 

a.

Subject to any matters not disclosed to us, the Company has taken all necessary corporate action required under the laws of the Republic of Singapore to authorise the entry into, execution and delivery of the Underwriting Agreement; and

 

b.

subject to any matters not disclosed to us, the Company has taken all necessary corporate action required under the laws of the Republic of Singapore to authorise the entry into, execution and delivery of the Indenture;

 

6.

The Notes have been duly authorised by the Company and, when the subscription moneys have been paid and entries in respect thereof have been duly made in the register maintained in accordance with the Transaction Documents and subject to paragraph 10, there is no reason so far as the laws of the Republic of Singapore are concerned why, in any action in the courts of the Republic of Singapore where the laws of the State of New York as the governing law of the Notes is pleaded and proved, the obligations of the Company under the Notes would not be valid, binding and enforceable against the Company;

 

7.

All payments in respect of the Notes may be paid by the Company to the holder thereof in United States dollars and freely transferred out of the Republic of Singapore, without the necessity of obtaining any consents, approvals, authorisations, orders or clearances from or registering with any Singapore governmental agency or body or any stock exchange authority and, except as or in the circumstances set forth in the Prospectus Supplement under the caption “Material Tax Consequences—Singapore Tax Considerations”, no taxes (including, without limitation, withholding, stamp, transfer or other taxes) will be imposed by the Republic of Singapore or any political subdivision or taxing authority thereof or therein on payments of principal and interest in respect of the Notes to holders of the Notes who are not tax residents of the Republic of Singapore and who do not derive such payments from any trade or business in the Republic of Singapore;

 

 

8.

The boxed sections, as set out in Appendix 1 respectively to this opinion, of the statements in the Prospectus Supplement under the caption “Material Tax Consequences—Singapore Tax Considerations” insofar as such statements constitute summaries of the Singapore legal matters referred to therein, fairly present the information called for with respect to such legal matters and fairly summarise the matters referred to therein;

 

9.

It is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of the Transaction Documents or the Notes, that any Singapore stamp duty be paid on them;

 

10.

The choice of the laws of the State of New York as the governing law of the Transaction Documents and the Notes will be recognised by the courts of the Republic of Singapore as a valid choice of law and accordingly the laws of the State of New York govern the validity and binding effect of the Transaction Documents and the Notes provided that:

 

a.

such law is proven to the satisfaction of the courts of the Republic of Singapore;

 

b.

such law will be disregarded if its application will be illegal or contrary to public policy or any applicable mandatory laws in the Republic of Singapore; and

 

c.

matters of procedure including questions of set-off and counter-claim, interest chargeable on judgment debts, priorities, measure of damages, limitation of actions and submissions to the jurisdiction of foreign courts are as a general rule governed by the laws of the Republic of Singapore to the exclusion of the relevant expressed governing law;

 

11.

The submission of the Company to the jurisdiction of the New York courts contained in the Underwriting Agreement and the Indenture, and the appointment by the Company of C T Corporation System as its agent for service of process in connection with the Underwriting Agreement and the Sixth Supplemental Indenture are, in each case, for the purpose of deciding any dispute that arises under the Underwriting Agreement and the Indenture, valid and binding on the Company under the laws of the Republic of Singapore, save that in cases where the courts of the Republic of Singapore have jurisdiction over a dispute, the Republic of Singapore is a more appropriate forum for determination of the matter and the ends of justice will be better served by the dispute being determined in the courts of the Republic of Singapore, the courts of the Republic of Singapore may in appropriate cases nonetheless exercise its residual jurisdiction to determine the matter; and

 

 

12.

A final and conclusive judgment on the merits properly obtained against the Company in any competent court of the State of New York or a federal court of the United States of America in New York for a fixed sum of money in respect of any legal suit or proceeding arising out of or relating to any of the Transaction Documents or the Notes and which could be enforced by execution against the Company in the jurisdiction of the relevant court and has not been stayed or satisfied in whole may be sued on in the Republic of Singapore as a debt due from the Company if:

 

a.

the relevant court had jurisdiction over the Company, in that the Company was, at the time such proceeding was instituted, resident in the jurisdiction in which such proceeding had been commenced or had submitted to the jurisdiction of the relevant court;

 

b.

that judgment was not obtained by fraud;

 

c.

the enforcement of that judgment would not be contrary to public policy of the Republic of Singapore;

 

d.

that the judgment had not been obtained in contravention of the principles of natural justice; and

 

e.

that the judgment of the relevant court does not include the payment of taxes, a fine or penalty.

 

 

 

Exhibit 4.2

 

FLEX LTD.

 

and

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee

 

______________________

 

5.250% Notes due 2032

 

______________________

 

Sixth Supplemental Indenture

 

Dated as of August 21, 2024

 

to

 

Indenture dated as of June 6, 2019

 

 

TABLE OF CONTENTS

 

		Page
Article 1
Definitions and Other Provisions of General Application
Section 1.01.	Definitions	1
Section 1.02.	Conflicts with Base Indenture	10
Article 2
Form of Notes
Section 2.01.	Form of Notes	10
Article 3
The Notes
Section 3.01.	Amount; Series; Terms	11
Section 3.02.	Denominations	12
Section 3.03.	Additional Notes; Repurchases	12
Section 3.04.	No Sinking Fund	12
Article 4
Redemption; Offer to Purchase
Section 4.01.	Optional Redemption	13
Section 4.02.	Redemption for Tax Reasons	14
Section 4.03.	Offer to Purchase	14
Article 5
Covenants and Remedies
Section 5.01.	Limitation on Liens	16
Section 5.02.	Limitation on Sale and Leaseback Transactions	21
Section 5.03.	Repurchase of Notes Upon a Change of Control	22
Section 5.04.	Events of Default; Acceleration	22
Section 5.05.	Modification and Waiver	24
Section 5.06.	References In Base Indenture	25
Section 5.07.	Defeasance and Discharge	25
Section 5.08.	Bermuda Branch; Full Recourse Obligations	25

 

 

Article 6
Payment of Additional Amounts
Section 6.01.	Payment of Additional Amounts	26
Article 7
Miscellaneous
Section 7.01.	Confirmation of Indenture	27
Section 7.02.	Counterparts	27
Section 7.03.	Governing Law; Submission to Jurisdiction	27
Section 7.04.	Recitals by the Company	28
Exhibit A	Form of 2032 Note	A-1

 

 

SIXTH SUPPLEMENTAL INDENTURE, dated as of August 21, 2024 (“Sixth Supplemental Indenture”), to the Indenture dated as of June 6, 2019 (as amended, modified or supplemented from time to time in accordance therewith, other than with respect to a particular series of debt securities, the “Base Indenture” and, as amended, modified and supplemented by this Sixth Supplemental Indenture, the “Indenture”), by and between Flex Ltd., a Singapore registered public company limited by shares and having company registration no. 199002645H, acting (subject to Section 1.17 of the Base Indenture) through its Bermuda branch, as issuer (the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION (as successor in interest to U.S. Bank National Association), a national banking association, as trustee (the “Trustee”).

 

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Notes:

 

WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture to provide for the issuance from time to time of senior debt securities to be issued in one or more series as provided in the Base Indenture;

 

WHEREAS, the Company has duly authorized the execution and delivery, and desires and has requested the Trustee to join it in the execution and delivery, of this Sixth Supplemental Indenture in order to establish and provide for the issuance by the Company of a series of Securities designated as its 5.250% Notes due 2032 (the “Notes”), on the terms set forth herein;

 

WHEREAS, Section 2.03 of the Base Indenture provides that a supplemental indenture may be entered into by the parties for such purpose;

 

WHEREAS, the conditions set forth in the Base Indenture for the execution and delivery of this Sixth Supplemental Indenture have been met; and

 

WHEREAS, all things necessary to make this Sixth Supplemental Indenture a valid and binding agreement of the parties, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture with respect to the Notes have been done.

 

NOW, THEREFORE:

 

Article 1
Definitions and Other Provisions of General Application

 

Section 1.01. Definitions. (a) Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Base Indenture. To the extent terms are defined in both this Sixth Supplemental Indenture and the Base Indenture, the applicable definition in this Sixth Supplemental Indenture shall control. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Sixth Supplemental Indenture refer to this Sixth Supplemental Indenture as a whole and not to any particular section hereof. Unless otherwise stated herein, all section references herein are to Sections of this Sixth Supplemental Indenture.

 

 

(b)           As used herein, the following terms have the specified meanings:

 

“Additional Amounts” has the meaning specified in ‎‎Section 6.01(a).

 

“Additional Notes” has the meaning specified in ‎Section 3.03.

 

“Attributable Debt” means, as to any particular lease under which any Person is at the time of determination liable for a term of more than 12 months, at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by such Person under such lease during the remaining term thereof (excluding any subsequent renewal or other extension options held by the lessee), discounted from the respective due dates thereof to such date at the interest rate inherent in such lease (such rate to be determined by any two of the following: the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, Assistant Treasurer and the Controller of the Company), compounded annually. The net amount of rent required to be paid under any such lease for any such period should be the aggregate amount of the rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of maintenance and repairs, services, insurance, taxes, assessments, water rates and similar charges and contingent rents (such as those based on sales). In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount of rent should include the lesser of (i) the total discounted net amount of rent required to be paid from the later of the first date upon which such lease may be so terminated or the date of the determination of such amount of rent, as the case may be, and (ii) the amount of such penalty (in which event no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated).

 

“Authorized Agent” has the meaning specified in ‎Section 7.03.

 

“bankruptcy default” has the meaning specified in ‎Section 5.04(a)(7).

 

“Base Indenture” has the meaning specified in the recitals of this Sixth Supplemental Indenture.

 

“Capital Stock” means (i) with respect to any Person organized as a corporation, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interest in (however designated) corporate stock, and (ii) with respect to any Person that is not organized as a corporation, the partnership, membership or other equity interests or participations in such Person.

 

 

“Change in Tax Law” means any change in or any amendment to the laws, including any applicable double taxation treaty or convention (or regulation or ruling promulgated thereunder), of Singapore, or any Other Jurisdiction, or of any political subdivision or taxing authority thereof, affecting taxation, or any change in the official position regarding the application or interpretation of such laws, double taxation treaty or convention, which change or amendment becomes effective after the Issue Date or, in the case of any Other Jurisdiction, on or after a later date on which a successor assumes the obligations of the Company under the Notes pursuant to Section 4.01 of the Base Indenture) and, as a result of which, the Company or such successor would be required to make payments of Additional Amounts on the next succeeding date for the payment thereof following the determination by the Company or any relevant successor that the effect of the Change in Tax Law cannot be avoided through any reasonable measures available to the Company or such successor.

 

“Change of Control” means the occurrence of any of the following:

 

(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) and Section 14(d) of the Exchange Act) other than the Company or one of its Subsidiaries;

 

(2) the adoption of a plan relating to the Company’s liquidation or dissolution;

 

(3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act), other than the Company or its Subsidiaries, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Company’s Voting Stock or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than the number of shares;

 

(4) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Voting Stock of the Company or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of Voting Stock of the Company outstanding immediately prior to such transaction directly or indirectly constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person (held in substantially the same proportions) immediately after giving effect to such transaction; or

 

(5) the first day on which a majority of the members of the board of directors of the Company are not Continuing Directors.

 

“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Ratings Event.

 

“Code” means the Internal Revenue Code of 1986.

 

“Company” means the party named as such in the recitals of this Sixth Supplemental Indenture until a successor replaces it pursuant to the terms and conditions of the Indenture and thereafter means the successor.

 

 

“Consolidated Net Tangible Assets” means the total of all assets reflected on the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries filed by the Company pursuant to Section 3.06 of the Base Indenture, prepared in accordance with U.S. GAAP, at their net book values (after deducting related depreciation, depletion, amortization and all other valuation reserves which, in accordance with such principles, should be set aside in connection with the business conducted), but excluding goodwill, unamortized debt discount and all other like intangible assets, all as determined in accordance with such principles, less the aggregate of the current liabilities of the Company and its Consolidated Subsidiaries reflected on such balance sheet, all as determined in accordance with such principles. For purposes of this definition, “current liabilities” includes all Indebtedness for money borrowed, incurred, issued, assumed or guaranteed by the Company and its Consolidated Subsidiaries, and other payables and accruals, in each case payable on demand or due within one year of the date of determination of Consolidated Net Tangible Assets, but shall exclude any portion of long-term debt maturing within one year of the date of such determination (which excluded amount includes, for the avoidance of doubt, the portion of such debt maturing during the last year thereof notwithstanding that such debt may then be characterized as short-term debt), all as reflected on such consolidated balance sheet of the Company and its Consolidated Subsidiaries, prepared in accordance with U.S. GAAP.

 

“Consolidated Subsidiary” means, at any date, any subsidiary or other entity the accounts of which would be consolidated with those of the Company in its consolidated financial statements if such statements were prepared as of such date.

 

“Continuing Directors” means, as of any date of determination, any member of the board of directors of the Company who (1) was a member of such board of directors on the date of the issuance of the Notes; or (2) was nominated for election or elected to such board of directors with the approval of a majority of the continuing directors who were members of such board of directors at the time of such nomination or election.

 

“Credit Facilities” means the Credit Agreement, dated as of July 19, 2022, by and among the Company and certain of its subsidiaries, from time to time party thereto, as borrowers, Bank of America, N.A., as Administrative Agent, an L/C Issuer and a Swing Line Lender, and the other L/C Issuers, Swing Line Lenders and Lenders party thereto, and any amendment, extension, renewal, increase, decrease, substitution or replacement (other than the Notes) of such facility or any such substitution or replacement.

 

“Currency Agreement” means any currency exchange contract, foreign exchange contract, currency swap agreement, cross-currency rate swap agreement, currency options agreement or other similar agreement or arrangement.

 

“expiration date” has the meaning specified in ‎Section 4.03(b).

 

“Event of Default” has the meaning specified in ‎Section 5.04.

 

 

“Funded Debt” means Indebtedness created, assumed or guaranteed by a Person for money borrowed which matures by its terms, or is renewable by the borrower to a date, more than a year after the date of original creation, assumption or guarantee.

 

“Generally Accepted Accounting Principles” or “U.S. GAAP” means generally accepted accounting principles in the United States set forth in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination. At any time after the Issue Date, the Company may elect to apply International Financial Reporting Standards as issued by the International Account Standards Board (“IFRS”) in lieu of U.S. GAAP and, upon any such election, references herein to U.S. GAAP or generally accepted accounting principles shall thereafter be construed to mean IFRS on the date of such election; provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in the indenture that requires the application of U.S. GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with U.S. GAAP.

 

“Guarantee” means any obligation, contingent or otherwise, of any person directly or indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep well, to purchase assets, goods, securities or services (unless such purchase arrangements are on arm’s-length terms and are entered into in the ordinary course of business), to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

 

“Indebtedness” means (a) any liability of the Company or any of its Subsidiaries (1) for borrowed money, or under any reimbursement obligation relating to a drawn upon letter of credit or bank guaranty, (2) evidenced by a bond, note, debenture or similar instrument (other than liabilities for the deferred purchase price of property evidenced by a bond, note, debenture or similar instrument to the extent (i) such liability has a regularly-scheduled maturity date that is less than one year, and (ii) solely for purposes of paragraph (4) under ‎‎Section 5.04, the non-payment of such liability is subject to a good faith dispute, including by virtue of a bona fide right of setoff), (3) for payment obligations arising under any conditional sale or other title retention arrangement, purchase money obligation or deferred purchase price arrangement (excluding any purchase price adjustments, earn-out or similar arrangements) made in connection with the acquisition of any businesses, properties or assets of any kind (other than payment obligations consisting of accounts payable for property or the deferred purchase price of property to the extent (i) such payment obligation has a regularly-scheduled maturity date that is less than one year, and (ii) solely for purposes of paragraph (4) under ‎‎Section 5.04, the non-payment of such payment obligation is subject to a good faith dispute, including by virtue of a bona fide right of setoff), (4) consisting of the discounted rental stream properly classified in accordance with U.S. GAAP on the balance sheet of the Company or any of its Subsidiaries, as lessee, as a capitalized lease obligation, or (5) under Currency Agreements and Interest Rate Agreements (but only the net liability thereunder, if any), to the extent not otherwise included in this definition (other than any Currency Agreements or Interest Rate Agreements entered into in connection with a bona fide hedging operation that provides offsetting benefits to the Company or any of its Subsidiaries); (b) any liability of others of a type described in the preceding clause (a) to the extent that the Company or any of its Subsidiaries has guaranteed or is otherwise legally obligated in respect thereof; and (c) any amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types referred to in clauses (a) and (b) above. “Indebtedness” shall not be construed to include (x) trade payables or credit on open account to trade creditors incurred in the ordinary course of business (including vendor finance programs), (y) obligations under supply or consignment contracts in the ordinary course of business or forward sales agreements for inventory, or (z) any liability arising from a Permitted Receivables Transaction. Accrual of interest, accretion or amortization of original issue discount will not be deemed to be an incurrence of Indebtedness for any purpose hereunder.

 

 

“Indenture” has the meaning specified in the recitals of this Sixth Supplemental Indenture.

 

“Initial Notes” has the meaning set forth in ‎Section 3.01(b).

 

“Interest Payment Date” has the meaning set forth in ‎Section 3.01(d).

 

“Interest Rate Agreement” means, for any Person, any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement.

 

“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and the equivalent investment grade credit rating from any additional rating agency or rating agencies selected by the Company.

 

“Issue Date” means August 21, 2024.

 

“Lien” means, with respect to any asset, any pledge, mortgage, charge, encumbrance or security interest in respect of such asset; provided that any transaction (including, without limitation, any sale of accounts receivable) which is treated as a sale of assets under U.S. GAAP shall be so treated and any asset which is so sold shall not be deemed subject to a Lien. A contractual grant of a right of set-off (which may include a security interest granted in the same collateral) or a contractual lien on property in transit to or in the possession of the lienor, does not create a Lien in the absence of an agreement to maintain a balance or deliver property against which such right may be exercised.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

 

 

“Notes” has the meaning specified in the recitals of this Sixth Supplemental Indenture.

 

“offer” has the meaning specified in ‎Section 4.03(a).

 

“Offer to Purchase” means an offer by the Company to purchase the Notes as required by ‎Section 5.03.

 

“Other Jurisdiction” has the meaning specified in ‎‎Section 6.01(a).

 

“Par Call Date” means November 15, 2031 (the date that is two months prior to the maturity of the Notes).

 

“Permitted Receivables Transaction” means any transaction or series of transactions entered into by the Company or any of its Restricted Subsidiaries in order to monetize or otherwise finance receivables, leases, Receivables Assets or other financial assets (including, without limitation, financing contracts) or other transactions evidenced by receivables purchase agreements, receivables sales agreement, factoring agreements and other similar agreements pursuant to which receivables are sold at a discount (in each case whether now existing or arising in the future), and which may include a grant of a security interest in any such receivables, leases, Receivables Assets or other financial assets (whether now existing or arising in the future) of the Company or any of its Restricted Subsidiaries, and any assets related thereto, including all collateral securing such receivables, leases, Receivables Assets or other financial assets, all contracts and all guarantees or other obligations in respect thereof, proceeds thereof and other assets that are customarily transferred, or in respect of which security interests are customarily granted, in connection with asset securitization transactions or factoring transactions involving receivables, leases, Receivables Assets or other financial assets or other transactions evidenced by receivables purchase agreements, receivables sales agreement, factoring agreements and other similar agreements pursuant to which receivables are sold at a discount.

 

“Prospectus” means the preliminary prospectus supplement dated August 19, 2024, 2024, together with the base prospectus dated August 15, 2024, as supplemented by the related pricing term sheet dated August 19, 2024, relating to the offering and sale of the Notes, all filed as part of the Company’s Registration Statement on Form S-3 (No. 333-281573).

 

“purchase amount” has the meaning specified in ‎Section 4.03(b)(1).

 

“purchase date” has the meaning specified in ‎Section 4.03(b)(3).

 

“Rating Agency” means (1) each of Moody’s and S&P; and (2) if Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the control of the Company, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act, selected by the Company (as certified by a resolution of the board of directors of the Company) as a replacement agency for Moody’s or S&P with respect to the Notes, as the case may be.

 

 

“Ratings Event” means, that the Notes cease to be rated by both Rating Agencies as Investment Grade on any day within 60 days after the earlier of (i) the occurrence of a Change of Control or (ii) public notice of the occurrence of a Change of Control or the intention by the Company to effect a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) (such period, the “Trigger Period”). If either Rating Agency is not providing a rating of the Notes on any day during the Trigger Period for any reason, the rating of such Rating Agency shall be deemed to have ceased to be rated Investment Grade with respect to the Notes during the Trigger Period.

 

“Receivables Assets” means accounts receivable, Indebtedness and other obligations owed to or owned by the Company or any Restricted Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services (including any Indebtedness or other obligation constituting an account, chattel paper, instrument or general intangible), together with all related security, collateral, collections, contracts, contract rights, guarantees or other obligations in respect thereof, all proceeds and supporting obligations and all other related assets which are of the type customarily transferred in connection with a sale, factoring, financing or securitization transaction involving accounts receivable.

 

“record date” has the meaning specified in ‎Section 3.01(d).

 

“Restricted Subsidiary” means, at any time, each and every Subsidiary at least 80% (by number of votes) of the Voting Equity of which is legally and beneficially owned by the Company and its Wholly Owned Restricted Subsidiaries at such time; provided, however that any Subsidiary designated as an “Unrestricted Subsidiary” under the Credit Facilities shall not be a Restricted Subsidiary.

 

“S&P” means S&P Global Ratings, a division of S&P Global, Inc., and any successor to its rating agency business.

 

“Sale and Leaseback Transaction” has the meaning specified in ‎Section 5.02.

 

“Significant Subsidiary” means any significant subsidiary as defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission; provided, however that any Subsidiary designated as an “Unrestricted Subsidiary” under the Credit Facilities shall not be a Significant Subsidiary.

 

“Sixth Supplemental Indenture” has the meaning specified in the recitals of this Sixth Supplemental Indenture.

 

“Stated Maturity” means, with respect to any installment of interest or principal on the Notes, the date on which such payment of interest or principal was scheduled to be paid pursuant to this Indenture, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

 

 

“Subsidiary of the Company” or similar references means any corporation, association or other business entity of which at the time of determination the Company or one or more of the Company’s subsidiaries owns or controls more than 50% of the shares of Voting Equity.

 

“Surety Obligations” means any bonds, including bid bonds, advance bonds, or performance bonds, letters of credits, warranties, and similar arrangements between the Company or any of its Restricted Subsidiaries and one or more surety providers, for the benefit of the Company’s or any Restricted Subsidiary’s suppliers, vendors, insurers, or customers including, in each case, any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, in each case as amended, modified, renewed, refunded, replaced, restated or refinanced from time to time, and in each case exclusive of obligations for the payment of borrowed money.

 

“Taxes” has the meaning specified in ‎‎Section 6.01(a).

 

“Tax Redemption Price” has the meaning assigned to such term in ‎‎Section 4.02(a).

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs:

 

The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities — Treasury constant maturities — Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields — one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

 

If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00, New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.

 

“Trigger Period” has the meaning specified in the definition of “Ratings Event.”

 

“Voting Equity” means stock or equivalent equity interest that ordinarily has voting power for the election of directors, managers or trustees, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.

 

“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.

 

“Wholly Owned Restricted Subsidiary” means, at any time, any Restricted Subsidiary 100% of all of the equity interests (except directors’ qualifying shares) and Voting Equity of which are owned by the Company and/or any one or more of the Company’s other Wholly Owned Restricted Subsidiaries at such time.

 

Section 1.02. Conflicts with Base Indenture. In the event that any provision of this Sixth Supplemental Indenture limits, qualifies or conflicts with a provision of the Base Indenture, such provision of this Sixth Supplemental Indenture shall control.

 

Article 2
Form of Notes

 

Section 2.01. Form of Notes. The Notes shall be substantially in the form of Exhibit A hereto, each of which is hereby incorporated in and expressly made a part of the Indenture.

 

 

Article 3
The Notes

 

Section 3.01. Amount; Series; Terms. (a) There is hereby created and designated one series of Securities under the Base Indenture: the title of the Notes shall be “5.250% Notes due 2032.” The changes, modifications and supplements to the Base Indenture effected by this Sixth Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes and shall not apply to any other series of Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other series of Securities specifically incorporates such changes, modifications and supplements.

 

(b)            The aggregate principal amount of Notes that initially may be authenticated and delivered under this Sixth Supplemental Indenture (the “Initial Notes”) shall be limited to $500,000,000, subject to increase as set forth in ‎Section 3.03.

 

(c)            The Stated Maturity of the Notes shall be January 15, 2032. The Notes shall be payable and may be presented for payment, purchase, redemption, registration of transfer and exchange, without service charge (in accordance with and subject to Section 2.08 of the Base Indenture), at the office or agency of the Company maintained for such purpose, which shall initially be the Corporate Trust Office.

 

(d)            The Notes shall bear interest at the rate of 5.250% per annum, beginning on August 21, 2024, or from the most recent Interest Payment Date to or for which interest has been paid or duly provided for, as further provided in the form of Note annexed hereto as Exhibit A. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months. The interest payment dates for the Notes shall be January 15 and July 15 of each year, beginning on January 15, 2025 (each such date, an “Interest Payment Date”) and the “record date” for any interest payable on each such Interest Payment Date shall be the immediately preceding January 1 and July 1; provided that upon the Stated Maturity of the Notes, interest shall be payable on such Stated Maturity from the most recent date to which interest has been paid or duly provided, and shall include the required payment of principal or premium, if any; and provided further, the “record date” for any interest, principal, or premium, if any, payable on the Stated Maturity of the Notes shall be the immediately preceding January 1, 2032. If any Interest Payment Date, Stated Maturity or other payment date with respect to the Notes is not a Business Day, the required payment of principal, premium, if any, or interest shall be due on the next succeeding Business Day as if made on the date that such payment was due, and, unless the Company defaults on such payment, no interest shall accrue on that payment for the period from and after that Interest Payment Date, Stated Maturity or other payment date, as the case may be, to the date of that payment on the next succeeding Business Day.

 

(e)            The Notes shall be issued in the form of one or more Global Securities, deposited with the Trustee as custodian for the Depositary or its nominee, duly executed by the Company and authenticated by the Trustee as provided in Section 2.04 of the Base Indenture.

 

 

(f)             Payment of principal of and premium, if any, and interest on a Global Security registered in the name of or held by the Depositary or its nominee shall be made in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Global Security. If Notes are no longer represented by a Global Security, payment of principal, premium, if any, and interest on certificated Notes in definitive form may, at the Company’s option, be made by (i) by wire transfer of immediately available funds to the accounts specified by the Holders thereof or (ii) if no such account is specified at least 15 days prior to the applicable date for such payment, by mailing a check to the applicable Holder’s registered address as set forth in the Securities Register.

 

Section 3.02. Denominations. The Notes shall be issuable only in registered form without coupons and only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

Section 3.03. Additional Notes; Repurchases. The Company may, from time to time, subject to compliance with any other applicable provisions of the Indenture, without notice to or the consent of the Holders of the Notes, increase the principal amount of the Notes by issuing additional Notes having the same terms and conditions as, and ranking equally and ratably with, the Notes in all respects (the “Additional Notes”), except that Additional Notes:

 

(i)            may have a different issue date from the Initial Notes;

 

(ii)           may have a different issue price from the Initial Notes; and

 

(iii)          may, if applicable, have a different interest accrual date and first Interest Payment Date following the issue date of such Additional Notes than the Initial Notes;

 

provided that if any such Additional Notes are not fungible with the outstanding Notes for U.S. federal income tax purposes, such Additional Notes shall have one or more separate CUSIP numbers. Except as set forth in ‎Section 5.05, the Initial Notes and any Additional Notes will, in each case, be consolidated and form a single series, and will have the same terms as to ranking, redemption, repurchase, waivers, amendments or otherwise, and will vote together as one class on all matters.

 

The Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), purchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives. The Company shall cause any Notes so purchased (other than Notes purchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation, and such Notes shall no longer be considered outstanding under the Indenture upon their purchase.

 

Section 3.04. No Sinking Fund. The Notes shall not be subject to any sinking fund.

 

 

Article 4
Redemption; Offer to Purchase

 

Section 4.01. Optional Redemption. (a) Subject to ‎Section 1.02 hereof, the provisions of Article 5 of the Base Indenture, as supplemented by the provisions of this Sixth Supplemental Indenture, shall apply to the Notes.

 

(b)            Prior to the Par Call Date, the Company may redeem some or all of the Notes, at any time and from time to time, upon not less than 10 nor more than 60 days’ notice (which notice will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures)), at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:

 

(i)            (A) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed discounted to the redemption date (assuming that the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points, less (B) interest accrued to the date of redemption; and

 

(ii)            100% of the principal amount of the Notes to be redeemed.

 

plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date.

 

(c)            On or after the Par Call Date, the Company may redeem the Notes in whole or in part, at any time and from time to time, upon not less than 10 nor more than 60 days’ notice (which notice will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures)), at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the redemption date.

 

(d)            The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.

 

(e)            Notwithstanding ‎Section 4.01‎(b), installments of interest on Notes that are due and payable on Interest Payment Dates falling on or prior to a redemption date for such Notes shall be payable on the Interest Payment Date to the registered Holders as of the close of business on the relevant record date in accordance with the provisions of such Notes and the Indenture. Unless the Company defaults in the payment of the redemption price and accrued interest, if any, for any Notes called for redemption pursuant to this ‎Section 4.01, on and after the redemption date, interest shall cease to accrue on such Notes called for redemption.

 

 

(f)            In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair in accordance with the Depositary’s procedures and any applicable stock exchange’s procedures. No such Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. Except in the case of Global Securities, a new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. In the case of Global Securities, so long as the Notes are held by The Depository Trust Company, Euroclear Bank SA/NV, as operator of the Euroclear System, and Clearstream Banking S.A. (or another Depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the applicable Depositary.

 

Section 4.02. Redemption for Tax Reasons. (a) The Company may, at its option, redeem the Notes in whole at any time at a redemption price equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date fixed for redemption (the “Tax Redemption Price”) if a Change in Tax Law occurs.

 

(b)            The date and the applicable redemption price will be specified in the notice of tax redemption, which will be given in accordance with ‎Section 5.02 of the Base Indenture not earlier than 90 days prior to, and not later than 90 days after, the earliest date on which the Company, would be obligated to pay such Additional Amounts if a payment in respect of the Notes were actually due on such date and, at the time such notification of redemption is given, such obligation to pay such Additional Amounts remains in effect.

 

(c)            Prior to giving the notice of a tax redemption, the Company will deliver to the Trustee an Officer’s Certificate stating that the Company is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company to so redeem have occurred and an Opinion of Counsel to that effect based on the statement of facts.

 

Section 4.03. Offer to Purchase. (a) An Offer to Purchase must be made by written offer (the “offer”) sent to the Holders of the Notes. The Company will notify the Trustee at least 15 days (or such shorter period as is acceptable to the Trustee) prior to sending the offer to Holders of the Notes of its obligation to make an Offer to Purchase, and the offer will be sent by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.

 

(b)            The offer must include or state the following as to the terms of the Offer to Purchase with respect to the Notes subject to such offer:

 

(1)            the aggregate principal amount of the outstanding Notes offered to be purchased by the Company pursuant to the Offer to Purchase (the “purchase amount”);

 

(2)            the purchase price, including the portion thereof representing accrued interest;

 

(3)            an expiration date (the “expiration date”) not less than 30 days or more than 60 days after the date of the offer, and a settlement date for purchase (the “purchase date”) not more than five Business Days after the expiration date;

 

 

(4)            information concerning the business of the Company and its Subsidiaries which the Company in good faith believes will enable the Holders to make an informed decision with respect to the Offer to Purchase;

 

(5)            a Holder may tender all or any portion of its Notes, subject to the requirement that any portion of a Note tendered must be in minimum denominations of $2,000 in principal amount or an integral multiple of $1,000 in excess thereof (provided that no Note in a denomination of other than $2,000 or an integral multiple of $1,000 in excess thereof may remain outstanding after giving effect to such repurchase);

 

(6)            the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase;

 

(7)            each Holder electing to tender a Note pursuant to the offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Company or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer);

 

(8)            interest on any Note not tendered, or tendered but not purchased by the Company pursuant to the Offer to Purchase, will continue to accrue;

 

(9)            on the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date;

 

(10)           Holders are entitled to withdraw Notes tendered by giving notice, which must be received by the Company or the Trustee not later than the close of business on the expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender;

 

(11)           if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued (provided that no Note in an unauthorized denomination may remain outstanding after any repurchase); and

 

(12)           if any Note contains a CUSIP or CINS number, no representation is being made as to the correctness of the CUSIP or CINS number either as printed on the Notes or as contained in the offer and that the Holder should rely only on the other identification numbers printed on the Notes.

 

The notice shall, if sent prior to the date of consummation of the Change of Control, state that the Offer to Purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.

 

(c)            On or prior to the purchase date, the Company will, with respect to Notes, to the extent lawful:

 

 

(i)             accept for payment all Notes or portions thereof properly tendered pursuant to the Offer to Purchase;

 

(ii)            deposit with the paying agent an amount equal to the aggregate purchase price in respect of all the Notes or portions of the Notes properly tendered (no interest or dividends will be paid on any such deposit); and

 

(iii)           deliver or cause to be delivered to the Trustee all Notes properly accepted, together with an Officer’s Certificate specifying which Notes have been accepted for purchase.

 

(d)            On the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date. The paying agent will disburse to each Holder of Notes properly tendered the purchase price for such Notes, and the Company shall execute, and the Trustee will authenticate and deliver (or cause to be transferred by book-entry) to each Holder, a new Note (or beneficial interest in a Global Security) equal in principal amount to any unpurchased portion of any Notes surrendered.

 

(e)            The Company will comply with Rule 14e-1 under the Exchange Act and all other applicable laws in making any Offer to Purchase, and the above procedures will be deemed modified as necessary to permit such compliance.

 

(f)            The Company will not be required to make an offer to repurchase Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.

 

Article 5
Covenants and Remedies

 

Section 5.01. Limitation on Liens. (a) The Company will not, and will not permit any Restricted Subsidiary to create, incur or assume any Lien on any property (including shares of Capital Stock or Indebtedness) or assets, whether now owned or hereafter acquired, to secure Indebtedness (including Guarantees) of the Company, any Restricted Subsidiary, or any other Person, including, without limitation, Indebtedness under the Credit Facilities, without in any such case effectively providing concurrently with the creation, incurrence or assumption of such Lien with respect to such Indebtedness that the Notes (together with, if the Company so determines, any other Indebtedness of the Company or such Restricted Subsidiary then existing or thereafter created which is not subordinated in right of payment to the Notes) will be secured by any such Lien equally and ratably with (or prior to) such secured Indebtedness, so long as such secured Indebtedness is so secured. In the case of the Credit Facilities, such obligation shall arise concurrently with the grant of any Lien thereunder, whether or not any Indebtedness will be outstanding under the Credit Facilities at such time. Any Lien created for the benefit of the Holders pursuant to this ‎Section 5.01 shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien that gave rise to the obligation to secure the Notes.

 

 

(b)            Except in the case of any Lien granted under the Credit Facilities, the foregoing restriction in ‎Section 5.01‎(a) above shall not, however, apply to:

 

(1)            Liens on property or assets of the Company or any Restricted Subsidiary existing on the Issue Date;

 

(2)            Liens on property or assets of any Person, existing prior to the time such Person becomes a Restricted Subsidiary or is, through one or a series of transactions, merged with or into or consolidated with the Company or a Restricted Subsidiary, or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety, through one or a series of transactions, to the Company or a Restricted Subsidiary, or arising thereafter pursuant to contractual commitments entered into prior to and not in contemplation of such Person becoming a Restricted Subsidiary and not in contemplation of any such merger or consolidation or any such sale, lease or other disposition; provided that such Liens shall not extend to any other property or assets of the Company or any other Restricted Subsidiary;

 

(3)            Liens on property or assets of the Company or any Restricted Subsidiary existing at the time of acquisition thereof (including acquisition through merger or consolidation); provided that such Liens were in existence prior to and were not created in contemplation of such acquisition and shall not extend to any other property or assets of the Company or any Restricted Subsidiary;

 

(4)            Liens on property (including in the case of a plant or facility, the land on which it is erected and fixtures comprising a part thereof) or assets of the Company or any Restricted Subsidiary securing the payment of all or any part of the purchase price thereof, or the cost of development, operation, construction, alteration, repair or improvement of all or any part thereof, or securing any Indebtedness created, incurred, assumed or guaranteed prior to, at the time of or within 180 days after, the acquisition of such property or assets and/or the completion of any such development, operation, construction, alteration, repair or improvement, whichever is later, for the purpose of financing all or any part of the purchase price and/or such cost (provided, in the case of Liens securing the payment of all or any part of the purchase price of any property or assets of the Company or any Restricted Subsidiary, as the case may be, or securing any Indebtedness created, incurred, assumed or guaranteed for the purposes of financing all or any part of such purchase price, such Liens are limited to the property or assets then being acquired and fixed improvements thereon and the capital stock of any Person formed to acquire such property or assets, and, provided further, that in the case of Liens securing the payment of all or any part of the cost of development, operation, construction, alteration, repair or improvement of any property of the Company or any Restricted Subsidiary, as the case may be, or securing any Indebtedness created, incurred, assumed or guaranteed for the purpose of financing all or any part of such cost, such Liens are limited to the assets or property then being developed, operated, constructed, altered, repaired or improved and the land on which such property is erected and fixtures comprising a part thereof and the capital stock of any Person formed to own such property or assets);

 

 

(5)            Liens which secure Indebtedness owing by (a) the Company to a Restricted Subsidiary or (b) any Subsidiary to the Company or to a Restricted Subsidiary;

 

(6)            Liens on the property of the Company or a Restricted Subsidiary in favor of the U.S. or any state thereof, or any department, agency, instrumentality or political subdivision of the U.S. or any state thereof, or in favor of any other country, or any department, agency, or instrumentality or political subdivision thereof, in each case (a) securing partial, progress, advance or other payments pursuant to any contract or statute, (b) securing Indebtedness incurred to finance all or any part of the purchase price or cost of constructing, installing or improving the property, including Liens to secure Indebtedness of the pollution control or industrial revenue bond type, or (c) securing Indebtedness issued or guaranteed by the U.S., any state, any foreign country or any department, agency, instrumentality or political subdivision of any such jurisdiction;

 

(7)            statutory or common law landlords’, carriers’, warehouseman’s, mechanics’, suppliers’, materialmen’s, repairmen’s, or other like Liens arising in the ordinary course of business and with respect to amounts not yet delinquent for a period of more than 60 days (taking into account applicable grace periods) or being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and, in the latter case, for which a reserve or other appropriate provision, if any, as shall be required in conformity with U.S. GAAP shall have been made;

 

(8)            Liens for taxes, assessments or governmental charges that are not yet delinquent for a period of more than 60 days (taking into account applicable grace periods) or are being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and, in the latter case, for which adequate reserves or other appropriate provisions are being maintained, to the extent required by U.S. GAAP;

 

(9)            zoning restrictions, easements, rights of way or defects or irregularities in title and other similar charges or encumbrances on property not materially adversely affecting the use of such property by the Company or any Restricted Subsidiary and Liens of a landlord, lessor or lessee under operating leases to which the Company or a Restricted Subsidiary is a party;

 

(10)          customary deposit or reserve arrangements entered into in connection with acquisitions;

 

(11)          Liens incurred in the ordinary course of business securing Indebtedness under any interest rate agreement, currency agreement or other similar agreement designed to protect the Company or any of its Restricted Subsidiaries from fluctuations in interest rates, currencies or the price of commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value;

 

 

(12)          Liens incurred (a) in connection with workers’ compensation, unemployment insurance, pensions, social security or similar laws and other types of statutory obligations or the requirements of any official body, including for the obtaining of franchises or licenses useful in the operation of business, or (b) to secure the performance of Surety Obligations incurred in the ordinary course of business consistent with industry practice or customs, penalty or appeal bonds, or (c) to secure performance of bids, tenders, leases, construction, sales or servicing contracts and similar obligations incurred in the ordinary course of business, or (d) to secure obligations in respect of customs, duties, excise taxes, value-added taxes, rents, or goods or services (including utility services) provided to such Person by governmental entities or suppliers, or other similar items which under U.S. GAAP constitute operating expense, or (e) to obtain or secure obligations with respect to letters of credit, guarantees, bonds or other sureties or assurances given in connection with the activities described in clauses (a), (b), (c), and (d) of this clause ‎(12), in the case of each of (a), (b), (c), (d) and (e) not incurred or made in connection with the borrowing of money;

 

(13)          Liens on receivables, leases, Receivables Assets or other financial assets incurred in connection with a Permitted Receivables Transaction;

 

(14)          judgment Liens against the Company or any Restricted Subsidiary not giving rise to an event of default and Liens created pursuant to attachment, garnishee orders or other process in connection with pre-judgment court proceedings;

 

(15)          Liens securing Indebtedness arising in connection with (a) so-called “synthetic leases” or “tax retention operating leases,” or (b) leases which are properly classified in accordance with U.S. GAAP as capitalized leases on the books of the Company or a Restricted Subsidiary;

 

(16)          Liens (x) arising in connection with the administration and operation of deposit accounts of the Company or any of the Company’s subsidiaries operated and maintained outside of the U.S. in connection with cross-border or intracountry, multiple currency cash pooling arrangements, including overdraft facilities; provided, however that such Liens shall not extend beyond the amounts on deposit therein, (y) arising out of cash management, netting or set off arrangements made by banks or financial institutions and the Company or any Subsidiary of the Company in the ordinary course of business, or over any asset held with a clearing house and (z) arising by operation of law or by agreement in favor of collecting or payor banks and other banks providing cash management services, in each case, having a right of setoff, revocation, refund or chargeback against money or instruments of the Company or any Subsidiary of the Company on deposit with or in possession of such bank to secure the payment of bank fees and other amounts owing in the ordinary course of business;

 

(17)          Liens pursuant to supply or consignment contracts or otherwise for the receipt of goods and services, encumbering only the goods, inventory or equipment covered thereby, incurred in the ordinary course of business and not incurred or made in connection with the borrowing of money;

 

 

(18)          Liens securing contingent obligations in respect of acceptances, letters of credit, bank guarantees, surety bonds or similar extensions of credit incurred in the ordinary course of business and not incurred or made in connection with the borrowing of money;

 

(19)          any extension, renewal, substitution, refinancing or replacement (or successive extensions, renewals, substitutions, refinancings or replacements), in whole or in part, of any of the Liens referred to in subsections ‎(1) through ‎(18) above or the Indebtedness secured thereby;

 

(20)          the interest of a licensor under any license of intellectual property in the ordinary course of business;

 

(21)          Liens on assets pursuant to merger agreements, stock or asset purchase agreements and similar purchase agreements in respect of the disposition of such assets by the Company or any Subsidiary of the Company;

 

(22)          call arrangements, rights of first refusal and similar rights and customary reciprocal easements and other rights of use relating to (w) investments in joint ventures, partnership and the like, (x) investments consisting of equity issued by suppliers and other venture capital or similar direct investments, (y) ownership of undivided interests in assets subject to a joint ownership or similar agreement or (z) assets acquired in original equipment manufacturing divestiture transactions or similar acquisitions and arising in favor of the original seller or transferor of such assets (or their respective affiliates) pursuant to or in connection with master services, manufacturing services or supply arrangements entered into in connection therewith;

 

(23)          Liens in favor of customers or vendors of the Company or any of its subsidiaries on any inventory or equipment acquired or held by the Company or any of its subsidiaries in the ordinary course of business to secure the purchase price of such inventory or such equipment, as applicable, or to secure other obligations owing to customers or vendors that are incurred solely for the purpose of financing or funding the acquisition of such inventory or such equipment (including liens in favor of customers of the Company or any of its subsidiaries securing amounts pre-funded by such customer for the sole purpose of acquiring inventory or equipment pursuant to the contractual arrangements with such customer), or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, that, no such lien shall extend to or cover any properties of any character other than the inventory or equipment being acquired (and any accessions or additions thereto, and proceeds thereof), and no such extension, renewal or replacement shall to or cover any properties not theretofore subject to the lien being extended, renewed or replaced; and

 

(24)          Liens in favor of the Holders pursuant to this Indenture.

 

 

(c)            Except in the case of any lien granted under the Credit Facilities (as to which no exceptions to the restrictions on Liens and the obligation to equally and ratably secure the Notes set forth in this ‎Section 5.01(a) and ‎(b) apply), the restriction on Liens on property or assets of the Company or any Restricted Subsidiary contained above will also not apply to the creation, incurrence or assumption by the Company or any Restricted Subsidiary of a Lien which would otherwise be subject to the restrictions under this ‎Section 5.01 if the aggregate principal amount of all Indebtedness secured by Liens on property or assets of the Company and of any Restricted Subsidiary then outstanding (not including any such Indebtedness secured by Liens permitted to be incurred pursuant to clauses ‎(1) through ‎(24) above) plus Attributable Debt of the Company and its Restricted Subsidiaries in respect of Sale and Leaseback Transactions, that would otherwise be subject to the restrictions of ‎Section 5.02 below (not including any such Sale and Leaseback transaction permitted under paragraph ‎(1) thereof in reliance on an exception set forth in clauses ‎(1) through ‎(24) above of this ‎Section 5.01) does not at the time such Indebtedness is incurred exceed an amount equal to the greater of $1,500,000,000 and 15% of Consolidated Net Tangible Assets.

 

(d)            For the purposes of determining compliance with this covenant, in the event that a Lien meets the criteria of more than one of the types of Liens described above, the Company, in its sole discretion, will classify, and may reclassify, such Lien and only be required to include the amount and type of such Lien in one of the clauses ‎(1) through ‎(24) of ‎Section 5.01(b) or ‎Section 5.01(c), and a Lien may be divided and classified and reclassified into more than one of the types of Liens described above.

 

(e)            For the purposes of this covenant, the creation of a Lien to secure a Guaranty or to secure Indebtedness which existed prior to the creation of such Lien, will be deemed to involve Indebtedness in an amount equal to the lesser of (x) the fair market value (as determined in good faith by the Company) of the asset subject to such Lien and (y) the principal amount guaranteed or secured by such Lien, but the amount of Indebtedness secured by Liens will be computed without cumulating the underlying Indebtedness with any guarantee thereof or lien securing the same.

 

Section 5.02. Limitation on Sale and Leaseback Transactions. The Company will not, and will not permit any Restricted Subsidiary to, enter into any arrangement after the Issue Date with any bank, insurance company or other lender or investor (other than the Company or another Restricted Subsidiary) providing for the leasing by the Company or any such Restricted Subsidiary for a period of more than three years (other than pursuant to so-called synthetic lease or tax retention operating lease transactions) of any property or assets which (x) at the time of such lease have been or are to be owned by the Company or a Restricted Subsidiary for more than 180 days and (y) have been or are to be sold or transferred by the Company or such Restricted Subsidiary to such lender or investor or to any person to whom funds have been or are to be advanced by such lender or investor on the security of such property or assets (a “Sale and Leaseback Transaction”), unless either:

 

(1)            the Company and its Restricted Subsidiaries would be entitled, pursuant to ‎Section 5.01, to incur Indebtedness secured by a Lien on such property or assets in a principal amount equal to or exceeding the Attributable Debt in respect of such Sale and Leaseback Transaction without equally and ratably securing the Notes; or

 

 

(2)            the Company, within 180 days after the sale or transfer, applies or causes a Restricted Subsidiary to apply an amount equal to the greater of the net proceeds of such sale or transfer or the fair value of such property at the time of entering into such sale and leaseback transaction (as determined by any two of the following: the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer and the Controller of The Company) to the retirement of Notes or other Funded Debt, of the Company (other than Funded Debt subordinated in right of payment to the Notes) or Funded Debt of a Restricted Subsidiary; provided that the amount to be so applied shall be reduced by (i) the principal amount of the Notes delivered within 180 days after such sale or transfer to the trustee for retirement and cancellation, and (ii) the principal amount of any such Funded Debt of the Company or a Restricted Subsidiary, other than the Notes, voluntarily retired by the Company or a Restricted Subsidiary within 180 days after such sale or transfer, excluding in the case of both (i) and (ii), retirement pursuant to any mandatory prepayment or by payment at maturity.

 

Section 5.03. Repurchase of Notes Upon a Change of Control. Within 30 days following a Change of Control Repurchase Event with respect to the Notes, or, at the Company’s option, prior to such Change of Control but after public announcement thereof, the Company (unless it has exercised its right to redeem all the Notes) shall make an Offer to Purchase all outstanding Notes at a purchase price equal to 101% of the aggregate principal amount plus accrued and unpaid interest to but not including the date of purchase.

 

Section 5.04. Events of Default; Acceleration. (a) Section 6.01 of the Base Indenture shall not apply to the Notes. Instead, each of the following events shall be an “Event of Default” with respect to the Notes:

 

(1)            the Company defaults in the payment of interest on any Note, or any Additional Amounts payable with respect thereto, when the same becomes due and payable, and the default continues for a period of 30 days;

 

(2)            the Company defaults in the payment of the principal or any premium with respect to any Note, or any Additional Amounts payable with respect thereto, when the same becomes due and payable at maturity, upon acceleration or redemption, or otherwise;

 

(3)            the Company defaults in the performance of or breaches any other covenant, warranty or agreement of the Company in the Indenture with respect to the Notes or under the Notes (other than a covenant or warranty included therein solely for the benefit of one or more series of Securities other than the Notes) and the default or breach continues for a period of 90 consecutive days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than 25% in aggregate principal amount of the Notes specifying such default or breach and requiring it to be remedied and stating that it is a “Notice of Default” under the Indenture;

 

 

(4)            there occurs with respect to any issue or issues of Indebtedness (including any Guarantee and any other series of debt securities) of the Company or any Significant Subsidiary having an outstanding principal amount of $225,000,000 or more in the aggregate for all such issues of all such persons, whether such Indebtedness exists on the date hereof or shall hereafter be created, (a) an event of default that has caused the holder thereof to declare such indebtedness to be due and payable prior to its stated maturity and such indebtedness shall not have been discharged in full or such acceleration shall not have been rescinded or annulled within 30 days of such acceleration and/or (b) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default;

 

(5)            the Company or any of its Significant Subsidiaries shall fail within 60 days to pay, bond or otherwise discharge uninsured judgments or court orders for the payment of money in excess of $225,000,000 in the aggregate, which are not stayed on appeal or are not otherwise being appropriately contested in good faith;

 

(6)            an involuntary case or other proceeding is commenced against the Company or any Significant Subsidiary with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding remains undismissed and unstayed for a period of 60 days; or an order for relief is entered against the Company or any Significant Subsidiary under the federal bankruptcy laws as now or hereafter in effect;

 

(7)            the Company or any of its Significant Subsidiaries (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any of its Significant Subsidiaries or of all or substantially all of the property and assets of the Company or any of its Significant Subsidiaries or (iii) effects any general assignment for the benefit of creditors, in each case, other than a proceeding initiated by or on behalf of the Company or a Subsidiary of the Company to effect the winding up, dissolution or other termination of existence of a Subsidiary of the Company which is permitted under Section 3.05 of the Base Indenture (an event of default specified in clause (6) or (7) a “bankruptcy default”);

 

(b)            Section 6.02 of the Base Indenture shall be amended with respect to the Notes by replacing the first two paragraphs of such section with the following:

 

“If an Event of Default, other than a bankruptcy default with respect to the Company (but not any Significant Subsidiary of the Company), occurs and is continuing under the Indenture with respect to the Notes, then, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by written notice to the Company (and to the Trustee if the notice is given by the Holders), may declare the principal of and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal and interest will become immediately due and payable. If a bankruptcy default occurs with respect to the Company, the principal of and accrued interest on Notes then outstanding will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.”

 

 

Section 5.05. Modification and Waiver. (a) Article 9 of the Base Indenture, as amended by this ‎Section 5.05, shall apply to the Notes.

 

(b)            Section 9.01 of the Base Indenture shall not apply to the Notes. In lieu thereof, the Company and the Trustee, without the consent of the Holders of the Notes (or any other Security outstanding under the Base Indenture), may modify or amend the Indenture in order:

 

(i)             to add to the covenants of the Company in the Indenture for the benefit of the Holders of the Notes or to surrender any right or power conferred upon the Company by the Indenture;

 

(ii)            to add to the Events of Default or the covenants of the Company for the benefit of the Holders of the Notes;

 

(iii)           to provide for uncertificated Notes in addition to or in place of certificated Notes, provided that any such uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;

 

(iv)           to evidence and provide for the acceptance of an appointment hereunder by a successor Trustee;

 

(v)            to provide for any Guarantee of the Notes, to secure the Notes or to confirm and evidence the release, termination or discharge of any Guarantee of or Lien securing such Notes when such release, termination or discharge is permitted by the Indenture;

 

(vi)           to cure any ambiguity, defect or inconsistency in the Indenture or such Notes;

 

(vii)          to make any other change that does not materially and adversely affect the rights of any Holder of the Notes in any material respect;

 

(viii)         to provide for the issuance of Additional Notes, subject to the limitations set forth in ‎Section 3.03;

 

(ix)            to comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act;

 

(x)            to provide for the assumption of the Company’s obligations in the case of a merger or consolidation and the Company’s release and discharge upon such assumption provided that Article 4 of the Base Indenture is complied with; or

 

(xi)           to conform the text of the Indenture or the Notes to any corresponding provision of the “Description of Notes” section of the Prospectus.

 

 

(c)            Section 9.02 of the Base Indenture shall be amended with respect to the Notes by replacing clauses (i) through (ix) of such Section with the following:

 

(i)            reduce the principal amount of or change the Stated Maturity of any installment of principal of the Notes or any Additional Amounts with respect thereto;

 

(ii)            reduce the rate of or change the Stated Maturity of any interest payment on the Notes or any Additional Amounts with respect thereto;

 

(iii)           reduce the amount payable upon the redemption of the Notes or change the times at which such Notes may be redeemed or, once notice of redemption has been given, the time at which it must thereupon be redeemed;

 

(iv)          after the time an Offer to Purchase is required to have been made with respect to the Notes, reduce the purchase amount or purchase price, or extend the latest expiration date or purchase date thereunder;

 

(v)           change any place where, or the currency in which, the Notes are payable;

 

(vi)           impair the right of any Holder of Notes to receive any principal payment or interest payment on such Holder’s Notes, on or after the Stated Maturity thereof, or to institute suit for the enforcement of any such payment,

 

(vii)         reduce the percentage of the principal amount of the Notes the consent of the Holders of which is required for amendments or waivers or the requirements for a quorum or voting at a meeting of Holders; or

 

(viii)        modify or change any provision of the Indenture affecting the ranking of (or with respect to any collateral securing the Notes, the priority of) the Notes in a manner adverse to the Holders of such Notes.

 

Section 5.06. References In Base Indenture. References to “Section 6.01,” “clause (a) or (b) of Section 6.01,” “clause (c) of Section 6.01,” “Section 6.01(d)” or “Section 6.01(e)” in the Base Indenture shall be deemed to refer to “‎Section 5.04(a),” “clause (1) or (2) of ‎Section 5.04(a),” “clause (3) of ‎Section 5.04(a),” “‎Section 5.04(a)(6)” and ‎Section 5.04(a)(7)” of this Sixth Supplemental Indenture, respectively.

 

Section 5.07. Defeasance and Discharge. Article 8 of the Base Indenture shall apply to the Notes.

 

Section 5.08. Bermuda Branch; Full Recourse Obligations. For the avoidance of doubt, Section 1.17 of the Base Indenture shall apply to the Notes.

 

 

Article 6
Payment of Additional Amounts

 

Section 6.01. Payment of Additional Amounts. (a) Any amounts paid, or caused to be paid, by the Company or any of its successors pursuant to Section 3.01 of the Base Indenture will be paid without deduction or withholding for any and all present and future taxes, levies, imposts or other governmental charges (“Taxes”) whatsoever imposed, assessed, levied or collected by or on behalf of Singapore, including any political subdivision or taxing authority thereof, or the jurisdiction of incorporation or residence of any successor, or any Subsidiary, branch, division or other entity through which the Company may from time to time direct any payments of principal, premium, if any, and interest on the Notes or any political subdivision or taxing authority thereof (an “Other Jurisdiction”). If deduction or withholding of any Taxes shall at any time be required by Singapore or any Other Jurisdiction, the Company or any relevant successor will, subject to timely compliance by the Holders or beneficial owners of the relevant Notes with any relevant administrative requirements, notify the Trustee and pay or cause to be paid such additional amounts (“Additional Amounts”) in respect of principal of, premium, if any, or interest, as may be necessary in order that the net amounts paid to the Holders of the Notes outstanding on the date of the required payment or the Trustee as the case may be, pursuant to the Indenture, after the deduction or withholding, shall equal the respective amounts that the Holder would have received if the Taxes had not been withheld or deducted.

 

(b)            Notwithstanding the foregoing, no Additional Amounts shall be paid to any Holder or beneficial owner for or on account of any of the following:

 

(i)             any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that the Holder or beneficial owner of the relevant Note has or had some connection with Singapore or any Other Jurisdiction, including that the Holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any Other Jurisdiction, or otherwise has or has had some connection with Singapore or any Other Jurisdiction, other than solely the holding or ownership of a Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, a Note;

 

(ii)            any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Note was presented more than 30 days after the date such payment became due or was provided for, whichever is later;

 

(iii)            any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of the relevant Note;

 

(iv)            any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any Other Jurisdiction of the Holder or beneficial owner of the relevant Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the Other Jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;

 

 

(v)            any present or future Taxes (A) which would not have been so imposed, assessed, levied or collected if the beneficial owner of the relevant Note had been the Holder of such Note, or (B) which, if the beneficial owner of such Note had held the Note as the Holder of such Note, would have been excluded pursuant to any one or combination of clauses ‎(i) through ‎(iv) above;

 

(vi)           any capital gain, estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; or

 

(vii)          any combination of the above.

 

Article 7
Miscellaneous

 

Section 7.01. Confirmation of Indenture. The Base Indenture, as supplemented and amended by this Sixth Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture and this Sixth Supplemental Indenture shall be read, taken and construed as one and the same instrument.

 

Section 7.02. Counterparts. This Sixth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Sixth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Sixth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Sixth Supplemental Indenture and signature pages for all purposes.

 

Section 7.03. Governing Law; Submission to Jurisdiction. This Sixth Supplemental Indenture and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York. To the fullest extent permitted by applicable law, the Company hereby irrevocably submits to the jurisdiction of any Federal or State court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Notes and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Company irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any suit, action or proceeding brought in such a court has been brought in an inconvenient forum. The Company agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any jurisdiction to which the Company is subject by a suit upon such judgment, provided that service of process is effected upon the Company in the manner specified herein or as otherwise permitted by law. To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture, to the extent permitted by law.

 

 

The Company hereby appoints C T Corporation System, with offices on the date hereof at 28 Liberty Street, New York, New York 10005, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes or the transactions contemplated herein that may be instituted in any State or U.S. federal court in the Borough of Manhattan in The City of New York, by any Holder or the Trustee, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Company hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company.

 

Section 7.04. Recitals by the Company. The recitals in this Sixth Supplemental Indenture are made by the Company only and not by the Trustee, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Sixth Supplemental Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of the Notes or the proceeds thereof. All of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the Notes and of this Sixth Supplemental Indenture as fully and with like effect as if set forth herein in full.

 

[Signature pages follow]

 

 

IN WITNESS WHEREOF, the parties have caused this Sixth Supplemental Indenture to be duly executed as of the date first written above.

 

	FLEX LTD.
	By:	/s/ B. Vijayandran A/L S. Balasingam
		Name:	B. Vijayandran A/L S. Balasingam
		Title:	Authorized Signatory

 

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
	By:	/s/ Bradley E. Scarbrough
		Name:	Bradley E. Scarbrough
		Title:	Vice President

 

[Signature Page – Sixth Supplemental Indenture]

 

 

EXHIBIT A

 

FORM OF NOTE

 

(FACE OF NOTE)

 

THIS SECURITY IS ISSUED IN GLOBAL FORM AND REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) OR A NOMINEE THEREOF. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM IN ACCORDANCE WITH THE TERMS HEREOF AND OF THE INDENTURE (AS DEFINED BELOW), THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

 

FLEX LTD.

5.250% Notes due 2032

 

No. R-[●]
		CUSIP No.: [●]
		ISIN No.: [●]
		Initially $_______________

 

FLEX LTD., a Singapore registered public company limited by shares and having company registration no. 199002645H, promises to pay to CEDE & CO., or registered assigns, the principal sum set forth on the Schedule of Exchanges of Securities attached hereto on January 15, 2032.

 

Issue Date: [●], 20[●]

 

Interest Rate: 5.250% per annum

 

Interest Payment Dates: January 15 and July 15

 

Record Dates: January 1 and July 1

 

Additional provisions of this Note are set forth on the reverse hereof. This Note is a “Security” within the meaning of the Indenture, and all references to “Note” or “Notes” herein shall be deemed to refer to “Security” or “Securities” unless the context otherwise requires.

 

 

IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized signatory.

 

	FLEX LTD.
	By:
		Name:
		Title:

 

[Signature Page to Global Note]

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
U.S. Bank Trust Company, National Association, as Trustee, certifies that this is one of the Securities referred to in the Indenture.
By:			Dated:
	Authorized Signatory

 

[Signature Page to Global Note]

 

 

[REVERSE SIDE OF NOTE]

 

FLEX LTD.

 

5.250% Note Due 2032

 

1.              Principal and Interest.

 

The Company promises to pay the principal of this Note on January 15, 2032.

 

The Company promises to pay interest on the principal amount of this Note on each interest payment date, as set forth on the face of this Note, at the rate of 5.250% per annum (subject to adjustment as provided below).

 

Interest will be payable semiannually in arrears on each January 15 and July 15 (to the holders of record of this series of Notes at the close of business on the January 1 or July 1 immediately preceding the interest payment date), commencing [●], 20[●].

 

The Company must also pay certain Additional Amounts as specified in the Indenture upon a “Change in Tax Law” as defined in the Indenture.

 

Interest on this Note will accrue from the most recent date to which interest has been paid on this Note (or, if there is no existing default in the payment of interest and if this Note is authenticated between a regular record date and the next Interest Payment Date, from such Interest Payment Date) or, if no interest has been paid, from the Issue Date^. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

The Company will pay interest on overdue principal, premium, if any, and, to the extent lawful, interest at a rate per annum of 5.250%. Interest not paid when due and any interest on principal, premium or interest not paid when due will be paid to the Persons that are Holders of this series of Notes on a special record date, which will be the 15th day preceding the date fixed by the Company or the Trustee for the payment of such interest, whether or not such day is a Business Day. At least 15 days before a special record date, the Company will send to each Holder and to the Trustee a notice that sets forth the special record date, the payment date and the amount of interest to be paid.

 

2.               Indenture.

 

This is one of the 5.250% Notes due 2032 Notes (the “Notes”) issued under an Indenture dated as of June 6, 2019 (the “Base Indenture”), as supplemented by the Sixth Supplemental Indenture dated as of August 21, 2024 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee. Capitalized terms used herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture will control.

 

 

The Notes are general unsecured obligations of the Company. The Supplemental Indenture limits the original aggregate principal amount of the Notes to $500,000,000, but Additional Notes may be issued pursuant to the Indenture, and the originally issued Notes and all such Additional Notes vote together for all purposes as a single class.

 

3.              Redemption and Repurchase; Discharge Prior to Redemption or Maturity.

 

This Note is subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture. There is no sinking fund or mandatory redemption applicable to this Note.

 

If the Company deposits or causes to be deposited with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes to redemption or maturity, the Company may in certain circumstances be discharged from the Indenture and the Notes or may be discharged from certain of its obligations under certain provisions of the Indenture.

 

4.              Registered Form; Denominations; Transfer; Exchange.

 

The Notes are in registered form without coupons in minimum denominations of $2,000 principal amount and any integral multiple of $1,000 in excess thereof. A Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Trustee may require a Holder to furnish appropriate endorsements, transfer documents, certificates and opinions of counsel and to pay any taxes and fees required by law or permitted by the Indenture. Pursuant to the Indenture, there are certain periods during which the Trustee will not be required to issue, register the transfer of or exchange any Note or certain portions of a Note.

 

5.              Defaults and Remedies.

 

Other than as set forth below, if an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes may declare all the Notes to be due and payable. If a bankruptcy or insolvency default with respect to the Company occurs and is continuing, the Notes automatically become due and payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of remedies.

 

6.              Amendment and Waiver.

 

Subject to certain exceptions, the Indenture and the Notes may be amended, or default may be waived, with the consent of the Holders of a majority in principal amount of the outstanding Notes, as provided in the Indenture. Without notice to or the consent of any Holder, the Company and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency.

 

 

7.              Authentication.

 

This Note is not valid until the Trustee (or Authenticating Agent) manually signs the certificate of authentication on the other side of this Note.

 

8.              Governing Law.

 

This Note shall be governed by, and construed in accordance with, the laws of the State of New York.

 

9.              Abbreviations.

 

Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to Minors Act).

 

10.            Indenture.

 

Each Holder, by accepting a Note, agrees to be bound by all of the terms and conditions of the Indenture, as the same may be amended from time to time.

 

The Company will furnish a copy of the Indenture to any Holder upon written request and without charge.

 

 

ASSIGNMENT FORM

 

To assign this Security, fill in the form below:

 

I or we assign and transfer this Security to

 

(Insert assignee’s soc. sec. or tax I.D. No.)

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint ________________ agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.

 

Dated: ________________________________

 

Signed: ________________________________

 

(Sign exactly as your name appears on the other side of this Security)

 

Signature Guarantee: ________________________________

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

 

PURCHASE NOTICE UPON A CHANGE OF CONTROL REPURCHASE EVENT

 

To: Flex Ltd.

 

The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Flex Ltd. (the “Company”) as to the occurrence of a Change of Control Repurchase Event with respect to the Company and hereby directs the Company to pay, or cause the Trustee to pay,                                   an amount in cash equal to 101% of the aggregate principal amount of the Notes, or the portion thereof (which is $2,000 principal amount or an integral multiple of $1,000 in excess thereof) below designated, to be purchased plus interest accrued and unpaid to, but excluding, the purchase date, except as provided in the Indenture. The undersigned hereby agrees that the Notes will be purchased pursuant to the terms and conditions of the Offer to Purchase and the Indenture. Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Indenture dated as of June 6, 2019 (the “Base Indenture”), as supplemented by the Sixth Supplemental Indenture dated as of August 21, 2024 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee.

 

Principal amount to be repurchased (at least $2,000 or an integral multiple of $1,000 in excess thereof):                                    

 

Remaining principal amount following such repurchase:                                    

 

Dated: ________________________________

 

Signed: ________________________________

 

(Sign exactly as your name appears on the other side of this Security)

 

Signature Guarantee: ________________________________

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

 

SCHEDULE OF EXCHANGES OF SECURITIES

 

The initial principal amount of this Global Security is ________________ DOLLARS ($_____________). The following exchanges of a part of this Global Security for certificated Securities or a part of another Global Security have been made:

 

Date of Exchange	Amount of decrease in principal amount of this Global Security	Amount of increase in principal amount of this Global Security	Principal amount of this Global Security following such decrease (or increase)	Signature of authorized signatory of Trustee

 

 

 

Exhibit 5.1

 

 

From :	Bernie Lee		DID :	+65 6890 7188
bernie.lee@agasia.law			Fax  :	+65 6631 7965

 

Our reference:	BLEE/1024007390		21 August 2024
Your reference:

 

Flex Ltd.
2 Changi South Lane
Singapore 486123
 

Dear Sirs

 

Flex Ltd.
US$500,000,000 5.250% Notes due 2032
 

1.

We have acted as legal advisers in Singapore to Flex Ltd. (the “Company”) in connection with the filing by the Company of the Registration Statement (as defined in Schedule 1 to this opinion), including the Prospectus (as defined in Schedule 1 to this opinion), under the U.S. Securities Act of 1933, as amended (the “Act”), relating to the offering by the Company of US$500,000,000 in aggregate principal amount of 5.250% Notes due 2032 (the “Notes”) as described in the Prospectus.

 

2.

For the purpose of rendering this opinion, we have examined (i) the documents listed and, where appropriate, defined in Schedule 1 to this opinion and (ii) such other documents as we have considered necessary or desirable to examine in order that we may render this opinion.

 

Save as expressly provided in paragraph 5 of this opinion, we express no opinion whatsoever with respect to any agreement or document described in paragraph 2 of this opinion.

 

3.

We have assumed:

 

(i)

that the Indenture (as defined in Schedule 1 to this opinion) is within the capacity and powers of, and has been validly authorised by, each party thereto (other than the Company) and has been validly executed and delivered by and on behalf of each party thereto and that the Notes have been validly executed, issued and delivered by or on behalf of each party thereto in accordance with all relevant laws, including, in the case of each party that is a corporate entity, the laws of that party’s jurisdiction of incorporation and its constitutional documents;

 

Allen & Gledhill LLP

One Marina Boulevard #28-00 Singapore 018989

Tel: +65 6890 7188 | Fax: +65 6327 3800

 

allenandgledhill.com

 

Allen & Gledhill LLP (UEN/Registration No. T07LL0925F) is registered in Singapore under the Limited Liability Partnerships Act 2005 with limited liability. A list of the Partners and their professional qualifications may be inspected at the address specified above.

 

 

(ii)

that each party to the Indenture (other than the Company) has obtained all necessary consents and authorisations, and is otherwise qualified or empowered, to enter into and perform its obligations under the Indenture;

 

(iii)

the genuineness of all signatures (including electronic signatures) on all documents and the completeness, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the completeness, and the conformity to original documents, of all copies or other specimen documents submitted to us and the authenticity of the originals of such latter documents;

 

(iv)

that the copies of the Constitution of the Company, its Certificate Confirming Incorporation of Company, its Certificate of Incorporation of Private Company, its Certificate of Incorporation on Conversion to a Public Company and its Certificate of Incorporation on Change of Name of Company submitted to us for examination are true, complete and up-to-date copies;

 

(v)

that the copies of each of the documents (including the Resolutions (as defined in Schedule 1 to this opinion)) submitted to us for examination are true, complete and up-to-date copies and have not been modified, supplemented or superseded;

 

(vi)

that where a document has been submitted to us in draft form, it will be executed in the form of that draft;

 

(vii)

that (a) none of the parties to the Indenture or the Notes nor any of their respective officers or employees has notice of any matter which would adversely affect the validity or regularity of the Resolutions, and (b) the Resolutions have not been rescinded or modified and remain in full force and effect and that no other resolution or other action has been taken which may affect the validity of the Resolutions;

 

(viii)

(a) that the information disclosed by the electronic searches made on 20 August 2024 (the “ACRA Searches”) of the electronic records of the Accounting and Corporate Regulatory Authority of Singapore (“ACRA”) against the Company is true and complete, (b) that such information has not since then been materially altered, and (c) that the ACRA Searches did not fail to disclose any material information which has been delivered for filing but did not appear on the public file at the time of the ACRA Searches;

 

(ix)

(a) that the information disclosed by the searches of the Appeal Cases, Admiralty, Civil Cases, Enforcement and Insolvency (including Judicial Management) modules made on 20 August 2024 in respect of the years 2022, 2023 and 2024 on the Cause Book Search of the Singapore Judiciary’s Integrated Electronic Litigation System against the Company (the “Court Searches”) is true and complete, (b) that such information has not since then been materially altered, and (c) that the Court Searches did not fail to disclose any material information which has been delivered for filing but was not disclosed at the time of the Court Searches;

 

 

(x)

that the Notes will be duly issued, executed, delivered, offered and sold in accordance with the terms of the Indenture and, in particular, (where Section 309B of the Securities and Futures Act 2001 of Singapore (“SFA”) applies) Section 309B of the SFA has been and will be complied with in all respects;

 

(xi)

that each of the Indenture and the Notes constitutes legal, valid, binding and enforceable obligations of the parties thereto for all purposes under the laws of all jurisdictions other than the Republic of Singapore and in particular, that the Indenture constitutes the legal, valid, binding and enforceable obligations of the parties thereto for all purposes under the laws of the State of New York by which the Indenture is stipulated to be governed;

 

(xii)

that there are no provisions in the laws of any jurisdiction (other than the laws of the Republic of Singapore) which may be contravened by the execution or delivery of the Indenture or the offering, issue, sale and delivery of the Notes and that, insofar as any obligation expressed to be incurred or performed under the Indenture or the Notes falls to be performed in or is otherwise subject to the laws of any jurisdiction other than the Republic of Singapore, its performance will not be illegal by virtue of the laws of that jurisdiction and all such laws have been or will be complied with;

 

(xiii)

that the choice of the laws of the State of New York as the governing law of the Indenture and the Notes has been made in good faith and will be regarded as a valid and binding selection which will be upheld in the courts of such jurisdiction as a matter of the laws of such jurisdiction and all other relevant laws (other than the laws of the Republic of Singapore);

 

(xiv)

that the Indenture and the Notes have the same meaning and effect under the laws of the State of New York as it would have if it were interpreted under the laws of the Republic of Singapore by a court in the Republic of Singapore;

 

(xv)

that all consents, approvals, authorisations, licences, exemptions or orders required from any governmental or other regulatory authority, body or agency outside the Republic of Singapore (including in Bermuda) and all other requirements outside the Republic of Singapore (including in Bermuda) for the legality, validity and enforceability of each of the Indenture and the Notes and the offering, issue, sale or delivery of the Notes have been or will be duly obtained or fulfilled and are and will remain in full force and effect and that any conditions to which they are subject have been or will be satisfied;

 

(xvi)

that all forms, returns, documents, instruments, exemptions or orders required to be lodged, filed, notified, advertised, recorded, registered or renewed with any governmental or other regulatory authority, body or agency outside the Republic of Singapore (including in Bermuda), at any time prior to, on or subsequent to the issue of the Notes, for the legality, validity and enforceability of each of the Indenture and the Notes and the offering, issue, sale and delivery of the Notes, have been or will be duly lodged, filed, notified, advertised, recorded, registered or renewed and that any conditions in relation to such lodgement, filing, notification, advertisement, recording, registration or renewal have been or will be satisfied;

 

 

(xvii)

that no party to the Indenture is, or will be, engaging in misleading or unconscionable conduct or seeking to conduct any relevant transaction or any associated activity in a manner or for a purpose not evident on the face of the Indenture which might render any of the Indenture or the Notes or any relevant transaction or associated activity illegal, void or voidable;

 

(xviii)

that apart from what appears in the Indenture and the Notes, there are no dealings between the parties to the Indenture that affect any of the Indenture or the Notes;

 

(xix)

there are no provisions of the laws of any jurisdiction outside the Republic of Singapore which would have any implication for the opinions we express and, insofar as the laws of any jurisdiction outside the Republic of Singapore may be relevant, such laws have been or will be complied with;

 

(xx)

that save as disclosed in the Board Resolutions, no director of the Company has an interest in the transactions contemplated by the Indenture;

 

(xxi)

that in exercising the respective power of each party to the Indenture to enter into the Indenture, undertake and perform the obligations expressed to be undertaken and performed by it under the Indenture and (in the case of the Company) issue and deliver the Notes and undertake and perform the obligations expressed to be undertaken and performed by it under the Notes, each party (and in the case where the party is a corporation, the directors, officers or other authorised representatives, as applicable, of such party) to the Indenture is and will be acting in good faith and in furtherance of the respective substantive objects and for the legitimate purpose of each of the parties to the Indenture, and that the entry into the Indenture by each of the parties thereto and (in the case of the Company) the issue and delivery of the Notes may reasonably be considered to have been in the interests, and for the commercial benefit, of each of the parties to the Indenture and the Company, respectively;

 

(xxii)

that the execution and delivery by each of the parties to the Indenture and the performance of their respective obligations under the Indenture, will not contravene any agreement or instrument binding upon them or their assets;

 

(xxiii)

the correctness of all facts (other than those stated in paragraph 5 below) stated in all documents submitted to us, including the Indenture and the Prospectus;

 

 

(xxiv)

that the Company has not, at the time of entry into the transactions contemplated by the Indenture, (a) entered into or initiated any process for any arrangement or compromise (including scheme of arrangement or compromise), nor does it have any intention to propose any arrangement or compromise, (b) initiated any corporate voluntary arrangements or entered into any composition agreement with its creditors, (c) been declared unable to pay its debts and liabilities (including contingent and prospective liabilities) or is otherwise insolvent, (d) commenced or been the subject of any winding-up procedure whatsoever, (e) requested or been subject to the appointment of, or any application being made or resolution being passed for the appointment of, any receiver (including a receiver and manager), trustee, judicial manager, liquidator, sequestrator, administrative receiver, administrator or similar officer (including any interim or provisional officer), (f) been in a position where it is unable to pay its debts and liabilities (including contingent and prospective liabilities) or is otherwise insolvent or has become unable to pay its debts and liabilities (including contingent and prospective liabilities) or been in a position where its assets are less than its liabilities (including contingent and prospective liabilities) or is otherwise insolvent by reason or as a result of the entering into or completion of the transactions contemplated by the Indenture, or (g) been subject to any event similar to any of the above under the laws of any jurisdiction; and

 

(xxv)

that interest and other amounts payable under the Notes are not deemed to be derived from the Republic of Singapore under Section 12(6) of the Income Tax Act 1947 of Singapore (“ITA”)1.

 

4.

The ACRA Searches and the Court Searches revealed no application for or order or resolution for the winding-up of the Company and no notice of appointment of a receiver or judicial manager for the Company. Notice of a winding-up order made or resolution passed or a receiver or judicial manager appointed may not be filed at the ACRA immediately.

 

5.

Based upon and subject to the foregoing, and subject to the qualifications set forth below and any matters not disclosed to us, we are of the opinion that:

 

(i)

the Company has been duly incorporated and is validly existing as a company under the laws of the Republic of Singapore;

 

(ii)

the Company has the corporate power and capacity to execute and deliver the Sixth Supplemental Indenture (as defined in Schedule 1 to this opinion) and the Notes and to perform its obligations thereunder; and

 

(iii)

the consummation of the transactions contemplated in the Sixth Supplemental Indenture and the issue and offering of the Notes have been, in the case of transactions to which the Company is a party, duly authorised by the Company.

 

6.

This opinion relates only to the laws of general application of the Republic of Singapore as published at the date hereof and as currently applied by the courts of the Republic of Singapore, and is given on the basis that it will be governed by and construed in accordance with the laws of the Republic of Singapore. We have made no investigation of, and do not express or imply any views on, the laws of any country other than the Republic of Singapore. In particular, we have made no investigation of the laws of the State of New York or the laws of Bermuda as a basis for this opinion and do not express or imply any views on such laws. In respect of the Indenture, the Notes and the Registration Statement, we have assumed due compliance with all matters concerning United States federal and New York laws, the laws of Bermuda and the laws of all other relevant jurisdictions other than the Republic of Singapore.

 

¹ Section 12(6) of the ITA states that there is deemed to be derived from Singapore:

(a)	any interest, commission, fee or any other payment in connection with any loan or indebtedness or with any arrangement, management, guarantee, or service relating to any loan or indebtedness which is –

(i)

borne, directly or indirectly, by a person resident in Singapore or a permanent establishment in Singapore (except in respect of any business carried on outside Singapore through a permanent establishment outside Singapore or any immovable property situated outside Singapore); or

(ii)

deductible against any income accruing in or derived from Singapore; or

(b)	any income derived from loans where the funds provided by such loans are brought into or used in Singapore.

 

 

7.

The term “enforceable” as used above means that the obligations assumed or to be assumed by the Company under each of the Indenture and the Notes are of a type which the courts of the Republic of Singapore enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular:

 

(i)

enforcement may be limited by prescription or lapse of time, bankruptcy, insolvency, liquidation, reorganisation, reconstruction or similar laws generally relating to or affecting creditors’ rights;

 

(ii)

enforcement may be limited by general principles of equity – for example, equitable remedies may not be available where damages are considered to be an adequate remedy. Without limitation to the foregoing, as an example, the power of the courts of the Republic of Singapore to grant equitable remedies such as injunction and specific performance is discretionary and accordingly a court of the Republic of Singapore may make an award of compensation where an equitable remedy is sought;

 

(iii)

claims may become barred under the Limitation Act 1959 of Singapore or may be or become subject to defences of set-off or counterclaim;

 

(iv)

where any obligations of any person are to be performed or observed or are based on a matter arising in any jurisdiction outside the Republic of Singapore or a person’s obligations are subject to the laws of a jurisdiction outside the Republic of Singapore, such obligations may not be enforceable under the laws of the Republic of Singapore to the extent that performance thereof would be illegal or contrary to public policy under the laws of such other jurisdiction; and

 

(v)

enforcement of obligations may be invalidated by reason of fraud.

 

8.

In addition, this opinion is subject to the following qualifications:

 

(i)

where under any of the Indenture or the Notes, any person is vested with discretion or may determine a matter according to its opinion, the laws of the Republic of Singapore may require that such discretion is exercised reasonably or that such opinion is based upon reasonable grounds;

 

(ii)

a court of the Republic of Singapore may stay proceedings if concurrent proceedings are brought elsewhere;

 

 

(iii)

any provision in each of the Indenture and the Notes as to severability may not be binding under the laws of the Republic of Singapore and the question of whether or not provisions which are illegal, invalid or unenforceable may be severed from other provisions in order to save such other provisions depends on the nature of the illegality, invalidity or unenforceability in question;

 

(iv)

a court of the Republic of Singapore may refuse to give effect to clauses in any of the Indenture and the Notes in respect of the costs of litigation brought before a court of the Republic of Singapore or where the court has itself made an order for costs;

 

(v)

any term of an agreement may be amended orally by all the parties notwithstanding provisions to the contrary in such agreement;

 

(vi)

this opinion is given on the basis that there has been and will be no amendment to or termination or replacement of the documents, authorisations and approvals referred to in paragraph 2 of this opinion and on the basis of the laws of the Republic of Singapore in force as at the date of this opinion. This opinion is also given on the basis that we undertake no responsibility to notify any addressee of this opinion of any change in the laws of the Republic of Singapore after the date of this opinion;

 

(vii)

under general principles of the laws of the Republic of Singapore, except as provided in the Contracts (Rights of Third Parties) Act 2001 of Singapore, a person who is not a contracting party to an agreement is not entitled to the benefits of the agreement and may not enforce the agreement;

 

(viii)

indemnity provisions in the Indenture may not be binding under the laws of the Republic of Singapore to the extent that performance would be determined by the courts of the Republic of Singapore to be illegal under the laws or contrary to public policy of the Republic of Singapore;

 

(ix)

the enforcement in the Republic of Singapore of the Indenture, of the Notes and of foreign judgments will be subject to the rules of civil procedure of the Republic of Singapore;

 

(x)

we give no opinion on tax matters and in particular give no opinion on the tax consequences of any transaction contemplated by the Indenture, the Notes or any related document;

 

(xi)

we express no opinion as to whether a provision that an appointment of an agent (including a process agent) is or shall be irrevocable, is legal, valid, binding or enforceable under the laws of the Republic of Singapore;

 

(xii)

a certificate, determination, notification or opinion of any party to the Indenture as to any matter provided for in the Indenture or the Notes may be held by the courts of the Republic of Singapore not to be conclusive if it could be shown to have an unreasonable or arbitrary basis or in the event of manifest error;

 

 

(xiii)

provisions in the Indenture or (where applicable) the Notes relating to any additional sum imposed by the Indenture or (where applicable) the Notes on the Company where it has defaulted in the performance of any of its obligations may not be enforceable in a court of the Republic of Singapore if any such provisions amount to a penalty under the laws of the Republic of Singapore;

 

(xiv)

any provision of the Indenture or the Notes which involves an indemnity for the costs of litigation is subject to the discretion of the courts of the Republic of Singapore to decide whether and to what extent a party to the litigation should be awarded the costs incurred by it in connection with the litigation;

 

(xv)

duties to enter into negotiations and further agreements (including but not limited to those in relation to the Indenture, the Notes and any other documents which are currently contemplated or which have been entered into but which are incomplete) in due course may not be effectively enforceable;

 

(xvi)

any provision of the Indenture or the Notes providing that certain calculations and/or certifications will be conclusive and binding (a) will not be effective if such calculations and/or certifications are fraudulent, incorrect, unreasonable, arbitrary, or shown not to have been given or made in good faith, and (b) will not necessarily prevent judicial enquiry into the merits of any claim by an aggrieved party;

 

(xvii)

we express no opinion on the enforceability of the choice of the laws of the State of New York to govern non-contractual obligations under the Indenture;

 

(xviii)

we express no opinion as to events and conditions which might violate covenants, restrictions or provisions with respect to financial ratios or tests or any contractual provision measured by the financial conditions or results of operations of the Company or any of its subsidiaries; and

 

(xix)

we express no opinion on the legality or enforceability of the performance by the Company of its obligations of indemnification or contribution set forth in the Indenture.

 

9.

As the primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or statistical matters and because of the wholly or partially non-legal character of many of the statements contained in the Registration Statement, we express no opinion or belief on and do not assume any responsibility for the accuracy, completeness or fairness of any of the statements contained in the Registration Statement and we make no representation that we have independently verified the accuracy, completeness or fairness of such statements. Without limiting the foregoing, we express no opinion or belief on, and assume no responsibility for, and have not independently verified the accuracy, completeness or fairness of the financial statements and schedules and other financial and statistical data included or incorporated in the Registration Statement, and we have not examined the accounting, financial or statistical records from which such financial statements, schedules and data are derived.

 

 

10.

This opinion is strictly limited to the matters stated herein and is not to be read as extending by implication to any other matter in connection with the Indenture or the Notes or otherwise including, but without limitation, any other document signed in connection with the Indenture or the Notes. We consent to the use and filing of this opinion as an exhibit to the Current Report on Form 8-K, dated 21 August 2024, and incorporated by reference into the Registration Statement (including the reference to our name under the caption “Legal Matters”). In giving such consent, we do not hereby admit and shall not be deemed to admit that we are “experts” within the meaning of Section 11 of the United States Securities Act of 1933, as amended or come within the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933, as amended, or the rules or regulations promulgated thereunder. This opinion is addressed to the Company solely for its own benefit. Save for the filing of this opinion with the SEC as an exhibit to the Current Report on Form 8-K, it is not to be transmitted to, nor is it to be relied upon by, any other person or quoted or referred to in any public document or filed with any governmental agency or other person without our consent in writing. This opinion is not to be relied upon by, nor do we accept any liability to, anyone other than the Company (even though you may have provided a copy to another person in accordance with the terms of this paragraph) without our express written consent.

 

Yours faithfully
 

/s/ Allen & Gledhill LLP

 

Allen & Gledhill LLP

 

 

SCHEDULE 1

 

1.

An executed copy of the indenture dated 6 June 2019 entered into between the Company, acting through its Bermuda branch, and U.S. Bank Trust Company, National Association, as trustee, and as successor in interest to U.S. Bank National Association (the “Base Indenture”), as supplemented by a sixth supplemental indenture dated 21 August 2024 entered into between the Company, acting through its Bermuda branch, and U.S. Bank Trust Company, National Association (the “Sixth Supplemental Indenture”, and together with the Base Indenture, the “Indenture”).

 

2.

A copy of the prospectus supplement (the “Prospectus Supplement”) dated 19 August 2024 relating to the offering of the Notes, supplementing the base prospectus dated 15 August 2024 (the “Base Prospectus”) contained in the Company’s Registration Statement (No. 333-281573) on Form S-3 filed with the United States Securities and Exchange Commission on 15 August 2024 (the “Registration Statement”) (the Base Prospectus, together with the Prospectus Supplement, the “Prospectus”).

 

3.

A copy of the Registration Statement, which includes the Base Prospectus.

 

4.

Copies of the Constitution of the Company, its Certificate Confirming Incorporation of Company, its Certificate of Incorporation of Private Company, its Certificate of Incorporation on Conversion to a Public Company and its Certificate of Incorporation on Change of Name of Company.

 

5.

Copies of an excerpt of the resolutions adopted by the Board of Directors of the Company on 5 March 2019 and 8 August 2024 (together, the “Board Resolutions”).

 

6.

A copy of an excerpt of the resolutions adopted by the Audit Committee of the Company on 22 July 2024 (such resolutions, together with the Board Resolutions, the “Resolutions”).

 

 

 

Exhibit 5.2

 

 

 

August 21, 2024

 

Flex Ltd.

2 Changi South Lane

Singapore 486123

 

Ladies and Gentlemen:

 

We have acted as special United States counsel to Flex Ltd., a company organized under the laws of Singapore (the “Company”), in connection with the issuance pursuant to an Indenture, dated as of June 6, 2019 (the “Base Indenture”), between the Company, acting through its Bermuda branch, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as successor in interest to U.S. Bank National Association, as supplemented by the Sixth Supplemental Indenture, dated as of the date hereof, between the Company (acting through its Bermuda branch) and the Trustee (the “Sixth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) of $500,000,000 aggregate principal amount of 5.250% Notes due 2032 (“Notes”), and the sale of the Notes pursuant to an Underwriting Agreement, dated as of August 19, 2024 (the “Underwriting Agreement”), among the Company and Barclays Capital Inc., Scotia Capital (USA) Inc., Truist Securities, Inc., and U.S. Bancorp Investments, Inc., as the representatives of the several underwriters named therein. The Company has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form S-3 (File No. 333-281573) (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), the offer and sale of certain securities, including the Notes.

 

In rendering the opinion expressed below, we have examined originals or copies of such agreements, instruments and documents as we have deemed necessary or appropriate as a basis for the opinion set forth herein. In our examination of the aforesaid documents, we have assumed, without any independent investigation or verification of any kind, the legal capacity of all persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals or duplicate originals, and the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies and the authenticity of the originals of such latter documents. As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on.

 

 

 

 

Flex Ltd.

August 21, 2024

Page 2

 

In connection with the opinion expressed below, we have assumed that the Company is validly existing as a corporation in good standing under Singapore law. In addition, we have assumed (i) that each of the Underwriting Agreement, the Indenture and the Notes (collectively, the “Documents”) has been duly authorized by all requisite action, corporate or otherwise, (ii) that each of the parties to the Documents has the power, corporate or otherwise, to enter into, deliver and perform all of its obligations thereunder, (iii) that each of the Underwriting Agreement and the Indenture has been duly executed and delivered by each of the parties thereto, (iv) that the Notes have been duly executed and delivered by the Company and authenticated by the Trustee in accordance with the Indenture, and delivered against payment therefor in accordance with the terms of the Underwriting Agreement, (v) that each of the Documents constitutes legally valid and binding obligations of each of the parties thereto other than, solely under the laws of the State of New York, the Company, enforceable against each of them in accordance with their respective terms, and (vi) that the status of each of the Documents as legally valid and binding obligations of the parties will not be affected by any (a) breaches of, or defaults under, agreements or instruments, (b) violations of statutes, rules, regulations or court or governmental orders, or (c) failures to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.

 

Based upon the foregoing and subject to the further qualifications and limitations set forth below, we are of the opinion that the Notes are valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

 

Our opinion is subject to the effects of (a) bankruptcy, insolvency (including, without limitation, all laws relating to preferences, fraudulent transfers and fraudulent conveyances), suspension of payments, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights, (b) general equitable principles (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of any purported waiver of such concepts), regardless of whether enforcement is sought in a proceeding at law or equity, (c) principles limiting the availability of the remedy of specific performance or injunctive relief, (d) an implied covenant of good faith and fair dealing, (e) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars, (f) limitations by any governmental authority that limit, delay or prohibit the making of payments outside the United States, and (g) generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected, (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification or contribution of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange, (v) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums or penalties upon acceleration or (vi) limit the waiver of rights under usury laws.

 

 

 

 

Flex Ltd.

August 21, 2024

Page 3

 

We express no opinion with respect to the enforceability of any provision set forth in the Indenture: (i) purporting to confer jurisdiction upon any court to hear or resolve any suit, action or proceeding seeking to enforce any provision of, or based upon any matter arising out of or in connection with, such document; (ii) purporting to be a waiver of any right or benefit (including, without limitation, statutes of limitation, valuation rights, offsets, counterclaims, defenses, exemptions, marshalling, stays and moratoria) except to the extent permitted by applicable law; (iii) purporting to grant any party a power of attorney or purporting to otherwise authorize any party to act on behalf of the Company; or (iv) purporting to be a waiver of the right to a jury trial. We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation, the enforceability of the governing law provision contained in the Notes or the Indenture. Furthermore, the manner in which any particular issue relating to the opinion would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it. Our opinion is further subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.

 

The foregoing opinion is limited to the matters expressly set forth herein, and no opinion is implied or may be inferred beyond the matters expressly stated.

 

This opinion is limited to questions arising under the laws of the State of New York as in effect on the date hereof, and we express no opinion as to any law other than the laws of such jurisdiction. Without limiting the generality of the foregoing, this opinion does not cover any matters arising under the laws of the jurisdiction of organization of the Company, or other political subdivisions thereof, or under any treaties or conventions to which such jurisdiction may be a party, or by which it may be bound.

 

We hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K to be filed on the date hereof and its incorporation by reference in the Registration Statement, and further consent to the reference to our name under the caption “Legal Matters” in the prospectus supplement relating to the Notes, which is a part of the Registration Statement. In giving this consent, we do not admit that we are (i) “experts” within the meaning of Section 11 of the Securities Act or the rules and regulations of the Commission promulgated thereunder or (ii) within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

	Very truly yours,
	/s/ Venable LLP

 

 

v3.24.2.u1

Cover	Aug. 19, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Aug. 19, 2024
Entity File Number	0-23354
Entity Registrant Name	FLEX LTD.
Entity Central Index Key	0000866374
Entity Tax Identification Number	00-0000000
Entity Incorporation, State or Country Code	U0
Entity Address, Address Line One	2 Changi South Lane
Entity Address, City or Town	Singapore
Entity Address, Country	SG
Entity Address, Postal Zip Code	486123
City Area Code	65
Local Phone Number	6876-9899
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Ordinary Shares, No Par Value
Trading Symbol	FLEX
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

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