Flex Ltd S-3ASR, filed Aug 15, 2024
Flex Ltd. (FLEX)
SECURITIES AND EXCHANGE COMMISSION
UNDER
THE SECURITIES ACT OF 1933
(Company Registration Number: 199002645H)
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Singapore
(State or other jurisdiction of
incorporation or organization) |
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Not Applicable
(I.R.S. Employer
Identification Number) |
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Singapore 486123
(65) 6876 9899
Executive Vice President and General Counsel
Flex Ltd.
12455G Research Blvd
Austin, Texas 78759 U.S.A.
(512) 425-4100
Venable LLP
151 W. 42nd Street, 49th Floor
New York, New York 10036
(212) 307-5500
| | Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ | |
| | Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ | |
| | | | | | | | Emerging growth company | | | ☐ | |
![[MISSING IMAGE: lg_flexreg-pn.jpg]](/stocks/flex/documents/3853dcf0-9c1e-4458-a5d0-4691e309ad12/asset/lg_flexreg-pn.jpg)
(Company Registration Number 199002645H)
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| EXPERTS | | | | | 17 | | |
12455G Research Blvd
Austin, Texas 78759 U.S.A.
Telephone: (512) 425-4100
![[MISSING IMAGE: lg_flexreg-4c.jpg]](/stocks/flex/documents/3853dcf0-9c1e-4458-a5d0-4691e309ad12/asset/lg_flexreg-4c.jpg)
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SEC registration fee
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Indenture trustee fees and expenses
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Printing expenses
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Accounting fees and expenses
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Legal fees and expenses
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Rating agency fees
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Transfer agent fees
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FINRA fees
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Miscellaneous
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Total
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Incorporated by Reference
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Exhibit
No. |
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Exhibit
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Form
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File No.
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Filing
Date |
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Exhibit
No. |
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Filed
Herewith |
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| 1.01 | | | Form of Underwriting Agreement* | | | | | | | | | | | | | | | | |
| 4.01 | | | | |
10-Q
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000-23354
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10/30/2019
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3.01
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| 4.02 | | | | |
8-K
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000-23354
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6/6/2019
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4.1
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| 4.03 | | | | |
S-3
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333-256716
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6/2/2021
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4.03
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| 4.04 | | | Form of Debt Securities* | | | | | | | | | | | | | | | | |
| 5.01 | | | | | | | | | | | | | | | | |
X
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| 5.02 | | | | | | | | | | | | | | | | |
X
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| 15.01 | | | | | | | | | | | | | | | | |
X
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| 23.01 | | | | | | | | | | | | | | | | |
X
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| 23.02 | | | | | | | | | | | | | | | | |
X
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| 23.03 | | | | | | | | | | | | | | | | |
X
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| 24.01 | | | | | | | | | | | | | | | | |
X
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| 25.01 | | | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture | | | | | | | | | | | | | | |
X
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| 107 | | | | | | | | | | | | | | | | |
X
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Signature
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Title
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Date
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/s/ Revathi Advaithi
Revathi Advaithi
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Chief Executive Officer
(Principal Executive Officer) and Director and Authorized U.S. Representative |
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August 15, 2024
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/s/ Jaime Martinez
Jaime Martinez
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Interim Chief Financial Officer
(Principal Financial Officer) |
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August 15, 2024
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/s/ Daniel J. Wendler
Daniel J. Wendler
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Senior Vice President and
Chief Accounting Officer (Principal Accounting Officer) |
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August 15, 2024
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/s/ William D. Watkins
William D. Watkins
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Chairman of the Board
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August 15, 2024
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/s/ John D. Harris II
John D. Harris II
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Director
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August 15, 2024
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/s/ Michael E. Hurlston
Michael E. Hurlston
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Director
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August 15, 2024
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/s/ Erin L. McSweeney
Erin L. McSweeney
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Director
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August 15, 2024
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/s/ Charles K. Stevens, III
Charles K. Stevens, III
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Director
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August 15, 2024
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Signature
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Title
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Date
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/s/ Maryrose T. Sylvester
Maryrose T. Sylvester
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Director
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August 15, 2024
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/s/ Lay Koon Tan
Lay Koon Tan
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Director
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August 15, 2024
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/s/ Patrick J. Ward
Patrick J. Ward
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Director
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August 15, 2024
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Exhibit 5.01
| From : Bernie Lee | DID :+65 6890 7188 |
| bernie.lee@agasia.law | Fax :+65 6631 7965 |
| Our reference | : | BLEE/1024007390 | 15 August 2024 |
| Your reference | : |
Flex Ltd.
2 Changi South Lane
Singapore
486123
Dear Sirs
REGISTRATION STATEMENT ON FORM S-3 OF FLEX LTD. (“FLEX”)
| 1. | We refer to the Registration Statement on Form S-3 (the “Registration Statement”) to be filed by Flex with the United States Securities and Exchange Commission (the “SEC”) on or about 15 August 2024, in connection with the offer and sale from time to time, in one or more offerings, on a delayed basis, of: |
| (a) | ordinary shares in the capital of Flex (the “Shares”); and |
| (b) | one or more series of debt securities of Flex (the “Debt Securities”) to be issued pursuant to an indenture dated 6 June 2019 entered into between Flex and U.S. Bank Trust Company, National Association, as trustee, and as successor in interest to U.S. Bank National Association (the “Trustee”), which is included as Exhibit 4.02 to the Registration Statement (the “Base Indenture”), and one or more supplements thereto, in each case, establishing the terms of each such series (such Base Indenture, together with the applicable supplement(s) pertaining to the applicable series of Debt Securities, collectively, the “Indenture”), |
in each case as contemplated by the Registration Statement.
The Shares and Debt Securities are collectively referred to herein as the “Securities”.
This opinion is being rendered to you in connection with the filing of the Registration Statement.
| 2. | For the purpose of rendering this opinion, we have examined:- |
| (a) | a substantially finalised draft of the Registration Statement dated 15 August 2024; |
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.
| (b) | a copy of the Constitution of Flex in force as at the date of this opinion (the “Constitution”); |
| (c) | a copy of Flex’s Certificate Confirming Incorporation of Company issued by the Accounting and Corporate Regulatory Authority of Singapore on 15 August 2024 confirming that Flex is incorporated under the Companies Act 1967 of Singapore (the “Companies Act”), Certificate of Incorporation of Private Company, Certificate of Incorporation on Conversion to a Public Company and Certificate of Incorporation on Change of Name of Company; |
| (d) | a copy of an excerpt of the resolutions adopted by the Board of Directors of Flex (the “Board”) at a meeting of the Board held on 8 August 2024 duly certified by the Secretary of Flex (the “Board Resolutions”); and |
| (e) | such other documents as we have considered necessary or desirable to examine in order that we may give this opinion. |
Save as expressly provided in paragraph 4 of this legal opinion, we express no opinion whatsoever with respect to any document described in paragraph 2 herein.
| 3. | We have assumed for the purpose of rendering this opinion: |
| (a) | 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; |
| (b) | that all representations and factual statements contained in the Registration Statement and all the documents listed in paragraph 2 are true and correct; |
| (c) | that each of the documents (including Flex’s Constitution, Certificate Confirming Incorporation of Company, Certificate of Incorporation of Private Company, Certificate of Incorporation on Conversion to a Public Company and Certificate of Incorporation on Change of Name of Company) submitted to us for examination is a true, complete and up-to-date copy and has not been modified, supplemented or superseded; |
| (d) | that the copy of the Board Resolutions is true, complete and up-to-date and such resolutions have not been rescinded or modified and all authorisations and approvals conferred thereby remain in full force and effect and that no other resolution or other action has been taken which may affect the validity of those resolutions; |
| (e) | that none of the parties to any of the Indenture or the Securities nor any of their respective officers or employees has notice of any matter which would adversely affect the validity or regularity of the Board Resolutions; |
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| (f) | that all relevant documents have been provided to us by the officers of Flex for inspection for purposes of this opinion; |
| (g) | there are no provisions of the laws of any jurisdiction (other than the laws of the Republic of Singapore) which have been and will be contravened by the execution or delivery of the Indenture and/or the offering, issue, sale and delivery of the Securities and that, insofar as any obligation expressed to be incurred or performed under the Indenture and to the extent relevant, the Securities, falls to be performed in or is otherwise subject to the laws of any jurisdiction other than the Republic of Singapore, its performance has been and will not be illegal by virtue of the laws of that jurisdiction and all such laws have been or will be complied with; |
| (h) | that the choice of the governing law of each of the Indenture and the Debt Securities have been and will be made in good faith and have been and will be regarded as a valid and binding selection which will be upheld in the United States federal or state courts, as a matter of the respective applicable laws governing each of the Indenture and Debt Securities, and all other relevant laws except the laws of the Republic of Singapore; |
| (i) | 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 and all other requirements outside the Republic of Singapore for the legality, validity and enforceability of each of the Indenture and the Securities and the offering, issue, sale or delivery of the Securities have been (and have not been withdrawn) 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; |
| (j) | 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, at any time prior to, on or subsequent to issue of the Securities, for the legality, validity and enforceability of each of the Indenture and the Securities and the offering, issue, sale and delivery of the Securities, 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; |
| (k) | (where Section 309B of the Securities and Futures Act 2001 of Singapore, as modified and amended from time to time (the “SFA”), applies) that Section 309B of SFA has been and will be complied with in all respects; |
| (l) | that there are no agreements, documents, arrangements or transactions to which Flex is a party that may in any way prohibit or restrict the issue of the Securities; |
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| (m) | that there are no agreements, documents, arrangements or transactions to which each party to the Indenture and the Debt Securities has entered into that may in any way prohibit or restrict its right to enter into the Indenture or the Debt Securities (as the case may be) or perform its obligations under the Indenture or the Debt Securities (as the case may be); |
| (n) | that Flex is solvent at the relevant time of issuance of any of the Securities (including any Shares duly issued upon the exchange or conversion of Debt Securities which are exchangeable or convertible into Shares); |
| (o) | that Flex will have, at the time of the individual grants and issuances of the Shares (including any Shares duly issued upon the exchange or conversion of Debt Securities which are exchangeable or convertible into Shares), upon issuance and delivery of certificates (or book-entry notation if uncertificated), a mandate from shareholders of Flex to issue such Shares pursuant to section 161 of the Companies Act (the “Share Issue Mandate”) and such Share Issue Mandate will not have expired in accordance with its terms or been previously revoked or varied by Flex in a general meeting; |
| (p) | that the issuance of each class or series of Securities will be duly authorised by, and the definitive terms of each class or series of Securities shall have been established in accordance with, resolutions duly passed by the Board (or any authorised committee thereof) or, if required, the shareholders of Flex; |
| (q) | that Flex will issue and deliver the Securities in the manner contemplated by any applicable underwriting, purchase or similar agreement and any Securities issuable upon conversion, exchange or exercise of any other Security will have been authorised and reserved for issuance, in each case within the limits of the then remaining authorised but unreserved and unissued amounts of such Securities; |
| (r) | there shall be the absence of fraud, bad faith, undue influence, coercion or duress on the part of any party to the Indenture and the Debt Securities and its respective officers, employees, agents and advisers; |
| (s) | that each of the parties to the Indenture and the Debt Securities (if a corporation and other than Flex) is validly incorporated and existing under the laws of its place of incorporation; |
| (t) | with respect to any Debt Securities, that: |
| (i) | an Indenture relating to such Debt Securities shall have been duly authorised, executed and delivered on behalf of Flex; |
| (ii) | all terms of such Debt Securities not provided for in such Indenture shall have been established in accordance with the provisions of the Indenture and reflected in appropriate documentation approved by us and, if applicable, executed and delivered by Flex and the Trustee; |
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| (iii) | such Debt Securities shall have been duly executed, authenticated, issued and delivered in accordance with the provisions of such Indenture; |
| (iv) | such Debt Securities, as executed and delivered, do not violate any law applicable to Flex or result in a default under or breach of any agreement or instrument binding upon Flex; and |
| (v) | such Debt Securities, as executed and delivered, comply with all requirements and restrictions, if any, applicable to Flex, in any case whether imposed by any court or governmental or regulatory body having jurisdiction over Flex; |
| (u) | (i) that the Indenture is within the capacity and powers of, and has been and will be duly authorised, executed and delivered by or on behalf of the parties thereto other than Flex, (ii) that the Indenture and the Securities have been and will constitute legal, valid, binding and enforceable obligations of the parties thereto other than Flex, enforceable against each of them in accordance with their respective terms, and (iii) that the status of the Indenture and the Securities as legally valid, binding and enforceable 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 authorisations from, or to make required registrations, declarations or filings with, governmental authorities; |
| (v) | that in exercising the respective powers of each party to the Indenture to enter into the Indenture and undertake and perform the obligations expressed to be undertaken and performed by it under the Indenture and (in the case of Flex) issue and deliver the Debt Securities and undertake and perform the obligations expressed to be undertaken and performed by it under the Debt Securities, each party (and in the case where the party is a corporation, the directors of such party) to the Indenture has been 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 Flex) the issue and delivery of the Debt Securities may reasonably be considered to have been in the interests, and for the commercial benefit, of each of the parties to the Indenture and Flex, respectively; |
| (w) | that each of the parties to the Indenture and the Debt Securities has not been and will not 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 Debt Securities or any relevant transaction or associated activity illegal, void or voidable; |
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| (x) | that all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture and the Securities under the laws of any jurisdiction (other than the Republic of Singapore) has been and will be duly fulfilled, performed and complied with; |
| (y) | that valid consideration has been and will be furnished for the entry into of the Indenture and the Debt Securities; |
| (z) | that each of the Indenture and the Debt Securities has constituted and will constitute legal, valid, binding and enforceable obligations of the parties thereto for all purposes under the laws of all relevant jurisdictions (other than the Republic of Singapore); |
| (aa) | that no consent, approval, authorisation or order of or qualification with any governmental or other regulatory authority, body or agency outside the Republic of Singapore was and is required for the performance by each of the parties (other than Flex) to the Indenture and the Debt Securities of its respective obligations under the Indenture and the Debt Securities; |
| (bb) | that the execution of the Indenture, the performance of the obligations under the Indenture, and the issue and the delivery of, and the performance of the obligations, where applicable, under the Securities has been and will be in compliance with (i) applicable laws and regulations in the Republic of Singapore and (ii) the provisions of the Constitution of Flex; |
| (cc) | that no foreign law is relevant to or affects the conclusions stated in this opinion, and none of the opinions expressed herein will be affected by the laws (including, without limitation, the public policy) of any jurisdiction outside the Republic of Singapore, 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; |
| (dd) | that no Securities will be offered in the Republic of Singapore in connection with the Registration Statement; |
| (ee) | that the Indenture and the Debt Securities have the same meaning and effect under the laws of the State of New York as it would have if it were interpreted by the laws of the Republic of Singapore by a court in the Republic of Singapore; |
| (ff) | that apart from what appears in the Indenture and the Debt Securities, there are no dealings between the parties that affect the Indenture and the Debt Securities; |
| (gg) | that, that save as disclosed in the Board Resolutions, no director of Flex has an interest in the issue of the Securities or the transactions contemplated by the Indenture or the Debt Securities; |
| (hh) | that the execution and delivery by each of the parties to the Indenture and the Debt Securities and the performance of their respective obligations under the Indenture and the Debt Securities, will not contravene any agreement or instrument binding upon them or their assets; |
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| (ii) | that where a document has been submitted to us in draft form, it will be executed in the form of that draft; |
| (jj) | (i) that the information disclosed by the electronic searches made on 15 August 2024 (the “ACRA Searches”) of the electronic records of the Accounting and Corporate Regulatory Authority of Singapore (the “ACRA”) against Flex is true and complete, (ii) that such information has not since then been materially altered, and (iii) that such search 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; and |
| (kk) | (i) that the information disclosed by the searches of the Appeal Cases, Admiralty, Civil Cases, Enforcement and Insolvency (including Judicial Management) modules made on 15 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 Flex (the “Court Searches”) is true and complete, (ii) that such information has not since then been materially altered, and (iii) 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. |
| 4. | The ACRA Searches and the Court Searches revealed no application for or order or resolution for the winding-up of Flex and no notice of appointment of a receiver or judicial manager for Flex. 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 paragraphs 2 and 3, and subject to the qualifications set forth below and any matters not disclosed to us, we are of the opinion that: |
| (a) | Flex is a company duly incorporated and validly existing under the laws of the Republic of Singapore; |
| (b) | the Shares to be allotted and issued by Flex (including any Shares duly issued upon the exchange or conversion of Debt Securities which are exchangeable or convertible into Shares): |
| (i) | when issued and delivered by Flex against payment of the full consideration payable for such Shares and when represented by share certificates issued by Flex in respect of such Shares; and |
| (ii) | duly registered in the register of members of Flex, in the name of the persons who have purchased the Shares, or in the name of Cede & Co., a partnership organised pursuant to the laws of the State of New York, in the United States of America, as nominee of the Depository Trust Company, as the case may be, |
| will be duly authorised by Flex for issuance and will be legally issued, fully-paid and non-assessable; |
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| (c) | Flex has the corporate power and capacity to perform its obligations under the Debt Securities; and |
| (d) | the Debt Securities, upon issuance and delivery of certificates (or book-entry notation if uncertificated) for such Debt Securities against full payment therefor of such lawful consideration as the Board (or an authorised committee thereof) may determine, and, if such Debt Securities are issued in registered form, entries in respect thereof having been duly made in the register maintained in accordance with the Indenture, will be duly authorised by Flex for issuance, legally issued and constitute legal, valid and binding obligations of Flex, enforceable in accordance with their terms. |
| 6. | For the purposes of this opinion, we have assumed that the term “non-assessable” in relation to the Shares to be issued (including any Shares duly issued upon the exchange or conversion of Debt Securities which are exchangeable or convertible into Shares) means under the laws of the Republic of Singapore that holders of such Shares, having fully paid up all amounts due on such Shares as to the issue price thereon, are under no further personal liability to contribute to the assets or liabilities of Flex in their capacities purely as holders of such Shares. |
| 7. | The term “enforceable” as used above means that the obligations assumed or to be assumed by Flex under the Indenture and the Debt Securities 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: |
| (a) | 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; |
| (b) | 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; |
| (c) | claims may become barred under the Limitation Act 1959 of Singapore or may be or become subject to defences of set-off or counterclaim; |
| (d) | 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 |
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| (e) | enforcement of obligations may be invalidated by reason of fraud. |
| 8. | In addition, this opinion is subject to the following qualifications: |
| (a) | any provision in the Indenture or the Debt Securities which provides that certain calculations and/or certifications will be conclusive and binding (i) will not be effective if such calculations and/or certifications are fraudulent or contain any manifest errors, and (ii) will not necessarily prevent judicial enquiry into the merits of any claim by an aggrieved party; |
| (b) | any provision in the Indenture which provides, or which has the effect of providing, for the payment of an increased amount by reason of any default may not be enforceable in a court of the Republic of Singapore if it is construed as a penalty; |
| (c) | provisions in the Indenture, if any, restricting competition or trade may not be enforceable as contrary to public policy in the Republic of Singapore unless a court of the Republic of Singapore considers that such provisions are reasonably necessary for the protection of a legitimate business interest; |
| (d) | any provision in any of the Indenture or the Debt Securities 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; |
| (e) | any term of an agreement may be amended orally by all the parties notwithstanding provisions to the contrary in any of the Indenture or the Debt Securities; |
| (f) | the rate of interest recoverable after judgment in the General Division of the High Court of Singapore is such interest as agreed between the parties or if there is no agreement on interest, simple interest at 5.33% p.a.; |
| (g) | a court of the Republic of Singapore may refuse to give effect to clauses in any of the Indenture and the Debt Securities 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; |
| (h) | a court of the Republic of Singapore may stay proceedings if concurrent proceedings are brought elsewhere and/or if there is another clearly more appropriate forum than the Republic of Singapore; |
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| (i) | if it is necessary to initiate any legal proceedings in the Republic of Singapore by serving a writ outside the jurisdiction, the leave of court (as to which the court has a discretion) would have to be obtained; |
| (j) | the courts of the Republic of Singapore are bound to follow judicial precedents laid down by the superior courts of the Republic of Singapore, however, the Court of Appeal (which is the highest court in the Republic of Singapore) has power to depart from such precedents where adherence will cause injustice in a particular case or constrain the development of law in conformity with the circumstances of the Republic of Singapore; |
| (k) | we express no opinion regarding the right or ability of any party to recover against any other party for diminution in the value of equity securities held by such party; |
| (l) | where under the Indenture or, where applicable, any Security, any person is vested with a discretion or may determine a matter in its opinion, that party may be required to exercise its discretion in good faith, reasonably and for a proper purpose, and to form its opinion in good faith and on reasonable grounds; |
| (m) | enforcement of any provision of the Indenture may be limited if a court in the Republic of Singapore holds the relevant provision to have been frustrated by events happening after the execution of the Indenture; |
| (n) | a party to a contract may be able to avoid its obligations under that contract (and may have other remedies) where it has been induced to enter into that contract by a misrepresentation or other vitiating factors and the courts of the Republic of Singapore will generally not enforce an obligation if there has been fraud; |
| (o) | any provision in the Indenture or, where applicable, any Security which purports to excuse or protect any party against its own negligence or misconduct or which purports to apply notwithstanding the negligence or misconduct of any party, or excusing a party from a liability or duty otherwise owed, may be limited by law or may not be given effect by the courts of the Republic of Singapore; |
| (p) | whilst a court of the Republic of Singapore has power to give judgment in a currency other than Singapore dollars, if, subject to the terms of the contract, it is the currency which most truly expresses the plaintiff’s loss, it has the discretion to decline to do so; |
| (q) | it is uncertain whether the parties can agree in advance the governing law of claims connected with the contract but which are not claims on the contract, such as a claim in tort; |
| (r) | indemnity provisions in the Indenture and the Debt Securities 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; |
10
| (s) | we express no opinion on the legality or enforceability of the performance by Flex of any obligations of indemnification or contribution set forth in the Indenture; |
| (t) | to the extent that any matter is expressly to be determined by future agreement or negotiation, the relevant provision in the Indenture may be unenforceable or void for uncertainty; |
| (u) | any provision of the Indenture stating that a failure or delay, on the part of any party, in exercising any right or remedy under the Indenture shall not operate as a waiver of such right or remedy may not be effective where one party’s conduct or representations had led the other party to reasonably conclude that the party has agreed to waive his rights, notwithstanding this “no waiver” provision; |
| (v) | provisions in any of the Indenture or the Debt Securities relating to any additional interest or other sum imposed on any of the parties to the Indenture or the Debt Securities 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 they are construed as a penalty; |
| (w) | a court in the Republic of Singapore will not be automatically bound to stay proceedings brought in its jurisdiction despite the existence of an exclusive jurisdiction provision in an agreement naming the foreign jurisdiction where the proceedings should be brought. The courts of the Republic of Singapore have the discretion as to whether or not to grant an application for a stay notwithstanding such an exclusive jurisdiction clause; |
| (x) | it is possible that a court in the Republic of Singapore would hold that any judgment (whether in the Republic of Singapore or elsewhere) given in relation to the Indenture supersedes the specific provisions of the Indenture for all intents and purposes, with the effect that any obligations imposed upon each of the parties under the Indenture, which are expressed to apply both before and after judgment, might not be held to survive any judgment; |
| (y) | certain laws, directives, orders and other regulations (whether relating to United Nations sanctions or otherwise) have in the past been and may from time to time be enacted, passed or issued, the effect of which as a matter of the laws of the Republic of Singapore might be to restrict the making of any payment and/or the performance of any other obligation under the Indenture; |
| (z) | under general principles of the laws of the Republic of Singapore, except as may be provided under 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; |
11
| (aa) | we give no opinion on tax matters and in particular give no opinion on the tax consequences of any transaction contemplated by the Indenture or any related document; |
| (bb) | 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; |
| (cc) | the enforcement in the Republic of Singapore of the Indenture and the Debt Securities and of foreign judgments will be subject to the rules of civil procedure of the Republic of Singapore; and |
| (dd) | this opinion is given on the basis that there has been no amendment to or termination or replacement of the documents, authorisations and approvals referred to in paragraph 2 of this opinion. This opinion is also given on the basis of the laws of the Republic of Singapore in force as at the date of this opinion and we undertake no responsibility to notify you of any change in the laws of the Republic of Singapore after the date of this opinion. |
| 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. | We are not responsible for investigating or verifying the accuracy or completeness of any facts or information, including statements of foreign law, or the reasonableness of any assumptions or statements of opinion or intention contained in the Registration Statement, or any document described in paragraph 2. In addition, we are not responsible for investigating or verifying that no material facts have been omitted from the Registration Statement or any document described in paragraph 2. |
| 11. | We express no opinion as to the validity, binding effect or enforceability of any provision in the Indenture or, where applicable, the Securities by reference to a law other than that of the Republic of Singapore, or as to the availability in the Republic of Singapore of remedies which are available in other jurisdictions. |
12
| 12. | 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 respect of the Registration Statement, we have assumed due compliance with all matters concerning the laws of all other jurisdictions other than the Republic of Singapore. |
| 13. | With respect to matters of fact material to this opinion, we have relied on the statements of the responsible officers of Flex. |
| 14. | Our advice is strictly limited to matters stated in this opinion and is not to be construed as extending by implication to all the documents listed in paragraph 2 above, or to any other matter or document in connection with, or referred to, in such document. |
| 15. | We consent to the use and filing of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement (including the reference to our name under the caption “Legal Matters”). In giving this consent, we do not hereby admit and shall not be deemed to admit that we come within the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933, as amended. |
| 16. | This opinion is addressed to Flex solely for its own benefit. Save for the filing of this opinion with the SEC as an exhibit to the Registration Statement, 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 do not accept any liability to anyone other than Flex (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
13
Exhibit 5.02
August 15, 2024
Flex Ltd.
2 Changi South Lane
Singapore 486123
Re: Registration Statement on Form S-3
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 preparation and filing with the U.S. Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration under the Securities Act and the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities Act, of (i) ordinary shares, no par value and (ii) debt securities of the Company, which may be issued in one or more series (the “Debt Securities”). Unless otherwise specified in the applicable prospectus supplement, the Debt Securities will be issued under the 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, and as successor in interest to U.S. Bank National Association.
In rendering the opinion expressed below, we have examined originals or copies of the Base Indenture and such other 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 15, 2024
Page 2
In connection with the opinion expressed below, we also have assumed that, at the time of the issuance, sale and delivery of any series of Debt Securities (i) the Registration Statement (including all necessary post-effective amendments), will be effective under the Securities Act, (ii) the Base Indenture shall have been duly qualified under the Trust Indenture Act of 1939, as amended, (iii) an appropriate prospectus supplement with respect to such Debt Securities shall have been prepared, delivered and filed with the Commission in compliance with the Securities Act and the applicable rules and regulations thereunder, (iv) a definitive purchase, underwriting or similar agreement with respect to such Debt Securities shall have been duly authorized by all necessary corporate or other action of the Company and duly executed and delivered by the Company and the other parties thereto, (v) the terms and conditions of such Debt Securities shall have been duly established by a supplemental indenture in accordance with the terms and conditions of the Base Indenture (such supplemental indenture together with the Base Indenture, the “Applicable Indenture”), (vi) the Applicable Indenture shall have been duly authorized by all necessary corporate or other action of the Company and duly executed and delivered by the Company and the relevant trustee, (vii) such Debt Securities shall have been duly authorized by all necessary corporate or other action of the Company and duly executed (in the case of certificated Debt Securities), delivered and authenticated in accordance with the terms of the Applicable Indenture and issued and sold for the consideration set forth in the applicable definitive purchase, underwriting or similar agreement, (viii) the Board of Directors of the Company, including any duly authorized committee thereof, shall have taken all other necessary corporate action to approve the issuance, sale and terms of such Debt Securities, and (ix) each of the parties to the Applicable Indenture, such Debt Securities and the applicable definitive purchase, underwriting or similar agreement has the power, corporate or otherwise, to enter into, deliver and perform all of its obligations thereunder.
Based upon the foregoing and subject to the further assumptions, qualifications and limitations set forth below, we are of the opinion that, with respect to any series of Debt Securities to be offered and sold by the Company, such Debt Securities will be valid and binding obligations of the Company, enforceable against the Company in accordance with their respective 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 15, 2024
Page 3
We express no opinion with respect to the enforceability of any provision set forth in any Applicable 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 Debt Securities or any Applicable 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.
In addition, in rendering the foregoing opinion, we have assumed that (i) the Company is, and will at the time of the issuance, sale and delivery of any series of Debt Securities be, validly existing as a corporation in good standing under Singapore law, (ii) each series of Debt Securities and the Applicable Indenture governing such series of Debt Securities will be governed by the internal laws of the State of New York, (iii) each Applicable Indenture and the applicable definitive purchase, underwriting or similar agreement will constitute 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 (iv) that the status of each of the Applicable Indentures and the applicable definitive purchase, underwriting or similar agreements 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.
Flex Ltd.
August 15, 2024
Page 4
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 Registration Statement and to the reference to our name under the caption “Legal Matters” in the prospectus that forms a part of the Registration Statement. In giving this consent, we do not hereby 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 |
Exhibit 15.01
LETTER IN LIEU OF CONSENT OF DELOITTE & TOUCHE LLP
August 15, 2024
The Board of Directors and Stockholders of Flex Ltd.
2 Changi South Lane
Singapore 486123
We are aware that our report dated July 26, 2024 on our review of interim financial information of Flex Ltd. and its subsidiaries appearing in Flex Ltd.’s Quarterly Report on Form 10-Q for the quarter ended June 28, 2024 is incorporated by reference in this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
Exhibit 23.01
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated May 17, 2024 relating to the financial statements of Flex Ltd. and subsidiaries (“the Company”) and the effectiveness of the Company's internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended March 31, 2024. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
August 15, 2024
Exhibit 25.01
securities and exchange commission
Washington, D.C. 20549
FORM T-1
Statement of Eligibility Under
The Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
¨Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
(I.R.S. Employer Identification No.)
|
800 Nicollet Mall Minneapolis, Minnesota |
55402 |
| (Address of principal executive offices) | (Zip Code) |
Bradley E. Scarbrough
U.S. Bank Trust Company, National Association
633 West 5th Street, 24th Floor,
Los Angeles, CA 90071
(213) 615-6047
(Name, address and telephone number of agent for service)
FLEX LTD.
(Exact name of obligor as specified in its charter)
| Singapore | Not Applicable |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
2 Changi South Lane Singapore |
486123 |
| (Address of Principal Executive Offices) | (Zip Code) |
Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-14 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee; Item 15 is not applicable because the Trustee is not a foreign trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the authorization of the Trustee to exercise corporate trust powers, included in Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of June 30, 2024, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles, State of California on the 15th of August, 2024.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION | ||
| By: | /s/ Bradley E. Scarbrough | |
| Bradley E. Scarbrough | ||
| Vice President | ||
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person's most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
| -1- |
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers of the Association's stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
| -2- |
Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association's management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| -3- |
| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (11) | Make contracts. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association's activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association's board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
| -4- |
In witness whereof, we have hereunto set our hands this 11th of June, 1997.
Exhibit 2
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board's responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person's shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
| Dated: August 15, 2024 | ||
| By: | /s/ Bradley E. Scarbrough | |
| Bradley E. Scarbrough | ||
| Vice President |
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 6/30/2024
($000’s)
| 6/30/2024 | ||||
| Assets | ||||
| Cash and Balances Due From Depository Institutions | $ | 1,420,557 | ||
| Securities | 4,393 | |||
| Federal Funds | 0 | |||
| Loans & Lease Financing Receivables | 0 | |||
| Fixed Assets | 1,164 | |||
| Intangible Assets | 577,338 | |||
| Other Assets | 153,812 | |||
| Total Assets | $ | 2,157,264 | ||
| Liabilities | ||||
| Deposits | $ | 0 | ||
| Fed Funds | 0 | |||
| Treasury Demand Notes | 0 | |||
| Trading Liabilities | 0 | |||
| Other Borrowed Money | 0 | |||
| Acceptances | 0 | |||
| Subordinated Notes and Debentures | 0 | |||
| Other Liabilities | 215,138 | |||
| Total Liabilities | $ | 215,138 | ||
| Equity | ||||
| Common and Preferred Stock | 200 | |||
| Surplus | 1,171,635 | |||
| Undivided Profits | 770,291 | |||
| Minority Interest in Subsidiaries | 0 | |||
| Total Equity Capital | $ | 1,942,126 | ||
| Total Liabilities and Equity Capital | $ | 2,157,264 |