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As filed with the Securities and Exchange Commission on June 2, 2015
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Registration No. 333-204083
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________
GLOBAL SOURCES LTD.
(Exact name of registrant as specified in its charter)
___________________
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Bermuda
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[Not Applicable]
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification Number)
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Canon’s Court
22 Victoria Street
Hamilton, HM 12, Bermuda
(441) 295-2244
(Address and telephone number of Registrant’s principal executive office)
James J. Clark, Esq.
Stuart G. Downing, Esq.
Cahill Gordon & Reindel llp
80 Pine Street
New York, New York 10005
(212) 701-3000
(Name, address and telephone number of agent for service)
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Copies to:
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James J. Clark, Esq.
Stuart G. Downing, Esq.
Cahill Gordon & Reindel llp
80 Pine Street
New York, New York 10005
(212) 701-3000
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James Bodi, Esq.
Appleby (Bermuda) Limited
Canon’s Court
22 Victoria Street
PO Box HM 1179
Hamilton HM EX, Bermuda
(441) 295-2244
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Approximate date of commencement of proposed sale to the public: From time to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
securities to be registered
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Proposed
maximum
offering price
per unit
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Proposed
maximum
aggregate
offering
price
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Amount of
registration
fee (6)
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Common shares, par value U.S. $0.01 per share (1)
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Preference shares, par value U.S. $0.01 per share (2)
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Unsecured debt securities (3)
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Warrants to purchase common shares
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Warrants to purchase preference shares
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Warrants to purchase debt securities
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Share purchase contracts
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Share purchase units (7)
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Units consisting of two or more of the above
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(4)(5)
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(5)(6)
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(4)(5)(6)
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(6)
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Total
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(4)(5)
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(5)(6)
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$300,000,000 (6)
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(6)
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(1)
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Also includes such presently indeterminate number of Global Sources Ltd. common shares into which certain series of Global Sources Ltd. debt securities and Global Sources Ltd. preference shares may be converted and for which no separate consideration will be received and for which Global Sources Ltd. warrants to purchase common shares may be exercised. A portion of the Global Sources Ltd. common shares registered hereunder may be sold by the selling shareholder from time to time pursuant to this registration statement.
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(2)
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Also includes such presently indeterminate number of Global Sources Ltd. preference shares into which certain series of Global Sources Ltd. debt securities may be converted and for which no separate consideration will be received and for which Global Sources Ltd. debt warrants may be exercised.
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(3)
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Also includes presently indeterminate number of Global Sources Ltd. debt securities for which certain Global Sources Ltd. preference shares may be exchanged and for which no separate consideration will be received.
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(4)
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There are being registered under this registration statement such indeterminate numbers of securities of Global Sources Ltd. as will have an aggregate initial offering price not to exceed $300,000,000.00. The initial public offering price of any securities denominated in any foreign currencies or currency units will be the U.S. Dollar equivalent thereof based on the prevailing exchange rates at the respective times such securities are first offered. If any Global Sources Ltd. debt securities are issued at an original issue discount, then the securities registered will include such additional Global Sources Ltd. unsecured debt securities as may be necessary such that the aggregate initial public offering price of all securities issued pursuant to this registration statement will not exceed $300,000,000.00. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement will cover such indeterminate number of Global Sources Ltd. common shares that may be issued with respect to share splits, share dividends and similar transactions. A portion of the Global Sources Ltd. common shares registered hereunder may be sold by the selling shareholder from time to time pursuant to this registration statement.
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(5)
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Pursuant to General Instruction II.C to Form F-3, the amounts to be registered, proposed maximum aggregate offering price per security, and proposed maximum aggregate offering price have been omitted for each class of securities that is offered hereby by the registrant.
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(6)
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The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended and reflects the maximum offering price of the securities that may be issued. Global Sources Ltd. previously paid a registration fee of $34,380 with respect to securities that were previously registered pursuant to the registrant’s prior registration statement on Form F-3, (SEC file no. 333-177577), filed on October 28, 2011. Pursuant to Rule 457(p) of the Securities Act, we are offsetting $20,545.55 of the filing fee against the filing fee of $34,860.00 due in connection with the filing of this registration statement hereunder. The registrant previously paid the filing fee of $14,314.45 in connection with its original filing on May 12, 2015.
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(7)
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Each Global Sources Ltd. share purchase unit consists of (a) a Global Sources Ltd. common share purchase contract, under which the holder or Global Sources Ltd., upon settlement, will purchase a fixed or varying number of Global Sources Ltd. common shares, and (b) a beneficial interest in either Global Sources Ltd. debt securities, Global Sources Ltd. preference shares or debt or equity obligations of third parties, including United States Treasury securities, purchased with the proceeds from the sale of the Global Sources Ltd. share purchase units. No separate consideration will be received for the Global Sources Ltd. share purchase contracts or the related beneficial interests.
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———————————————
EXPLANATORY NOTE
Global Sources Ltd. is filing this pre-effective Amendment No. 1 (this “Amendment”) to the Registration Statement on Form F-3 (Registration Statement No. 333-204083) (the “Registration Statement”) as an exhibit-only filing to file a revised Exhibit 5.1. This Amendment does not relate to the prospectus previously filed as part of the Registration Statement. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature pages to the Registration Statement, the Exhibit Index and the filed Exhibit 5.1. The prospectus previously filed as part of the Registration Statement is unchanged and has been omitted.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
The Companies Act requires every officer, including directors, of a Bermuda company in exercising powers and discharging duties, to act honestly and in good faith with a view to the best interests of the company, and to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Companies Act further provides that a Bermuda company may in its bye-laws or in any contract or arrangement between the company and any officer, or any person employed by the company as auditor, exempt such officer or person from, or indemnify him in respect of, any loss arising or liability attaching to him by virtue of any rule of law in respect of any negligence, default, breach of duty or breach of trust of which the officer or person may be guilty in relation to the company or any subsidiary thereof, but any provision whether contained in the bye-laws of a Bermuda company or in any contract or arrangement between the company and any officer, including a director, or any person employed by the company as auditor, exempting such officer or person from, or indemnifying him against, any liability which by virtue of any rule of law would otherwise attach to him, in respect of any fraud or dishonesty of which he may be guilty in relation to the company, shall be void.
Under our bye-laws, every director, officer, resident representative and committee member shall be indemnified out of our funds against all liabilities, loss, damage or expense, including but not limited to liabilities under contract, tort and statute or any applicable foreign law or regulation and all reasonable legal and other costs and expenses properly payable, incurred or suffered by him as director, officer, resident representative or committee member; provided that the indemnity contained in the bye-laws will not extend to any matter which would render it void under the Companies Act as discussed above.
Our bye-laws also contain provisions for the advancement of funds to our directors, officers and other indemnified persons for expenses incurred in defending legal proceedings against them arising from the course of their duties. At our Annual General Meeting on June 11, 2008, our shareholders approved amendments to our bye-laws to provide more specifically that if any fraud or dishonesty on the part of the director, officer or other indemnified person concerned is proved, any such funds advanced to him or her must be repaid. These amendments conformed our bye-laws with changes to the Companies Act.
Item 9. Exhibits.
A list of the exhibits to this registration statement is set forth in the Exhibit Index on page E-1 of this registration statement and is incorporated herein by reference.
Item 10. Undertakings.
THE UNDERSIGNED REGISTRANT HEREBY UNDERTAKES:
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1.
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
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Provided, however, that:
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Paragraphs (1)(i) and (1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; and
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Paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the registration statement is on Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F (17 CFR 249.220f) at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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i. If the registrant is relying on Rule 430B (17 CFR 230.430B):
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
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If the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Hong Kong Special Administrative Region of the People’s Republic of China on June 2, 2015.
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GLOBAL SOURCES LTD.
By: /s/ Connie Lai
Name: Connie Lai
Title: Chief Financial Officer
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KNOW ALL MEN BY THESE PRESENTS THAT each person whose signature appears below does hereby constitute and appoint Merle A. Hinrich, Spenser Au, Connie Lai and Chan Hoi Ching, and each of them, as his true and lawful attorney-in-fact and agent and in his or her name, place, and stead, and in any and all capacities, to sign his or her name to the Registration Statement of Global Sources Ltd., a Bermuda corporation, on Form F-3 under the Securities Act of 1933, and to any and all amendments or supplements thereto (including any post-effective amendments, including any registration statement filed under Rule 462(b) under the Securities Act of 1933), with all exhibits thereto and other documents in connection therewith and to cause the same to be filed with the Securities and Exchange Commission, granting unto said attorneys and each of them full power and authority to do and perform any act and thing necessary and proper to be done in the premises, as fully and to all intents and purposes as the undersigned could do if personally present, and the undersigned hereby ratifies and confirms all that said attorneys or any one of them shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Merle A. Hinrich
Merle A. Hinrich
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Executive Chairman of the Board; Director
(a principal executive officer)
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June 2, 2015
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/s/ Spenser Au
Spenser Au
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Chief Executive Officer
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June 2, 2015
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/s/ Connie Lai
Connie Lai
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Chief Financial Officer (principal financial officer and
principal accounting officer)
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June 2, 2015
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/s/ Sarah Benecke
Sarah Benecke
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Director
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June 2, 2015
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/s/ Eddie Heng Teng Hua
Eddie Heng Teng Hua
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Director
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June 2, 2015
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/s/ David F Jones
David F Jones
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Director
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June 2, 2015
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/s/ Roderick E Chalmers
Roderick E Chalmers
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Director
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June 2, 2015
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/s/ James A Watkins
James A Watkins
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Director
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June 2, 2015
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/s/ Yam Kam Hon Peter
Yam Kam Hon Peter
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Director
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June 2, 2015
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/s/ Brent Barnes
Brent Barnes
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Chief Operating Officer
(authorized representative in the United States)
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June 2, 2015
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EXHIBITS
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Exhibit
Number
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Description
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1.1*
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Form of Underwriting Agreement (Equity).
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1.2*
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Form of Underwriting Agreement (Debt).
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1.3*
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Form of Underwriting Agreement (Share Purchase Contracts).
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1.4*
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Form of Underwriting Agreement (Share Purchase Units).
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3.1(1)
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Memorandum of Association of the Company.
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3.2(1)
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Bye-laws of the Company.
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3.3(2)
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Amendments to the Bye-laws of Global Sources Ltd, as approved at the May 6, 2002 Annual General Meeting of Shareholders.
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4.1(1)
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Specimen Common Share Certificate.
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4.2(3)
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Form of Senior Debt Securities Indenture.
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4.3(3)
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Form of Senior Debt Securities (included as part of Exhibit 4.2).
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4.4(3)
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Form of Subordinated Debt Securities Indenture.
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4.5(3)
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Form of Subordinated Debt Securities (included as part of Exhibit 4.4).
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4.6*
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Form of Standard Share Warrant Agreement.
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4.7*
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Form of Standard Share Warrant Certificate.
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4.8*
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Form of Standard Debt Warrant Agreement.
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4.9*
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Form of Standard Debt Warrant Certificate.
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4.10*
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Form of Standard Share Purchase Contract Agreement.
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5.1**
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Opinion of Appleby.
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5.2ǂ
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Opinion of Cahill Gordon & Reindel llp.
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12.1ǂ
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Computation of ratio of earnings to fixed charges.
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23.1**
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Consent of Appleby (included as part of Exhibit 5.1).
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23.2ǂ
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Consent of Cahill Gordon & Reindel llp (included as part of Exhibit 5.2).
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23.3ǂ
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Consent of PricewaterhouseCoopers LLP.
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24.1**
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Power of Attorney (included on signature page to this Registration Statement).
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25.1*
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Form T-1 Statement of Eligibility of Trustee (Senior Debt Securities Indenture and Subordinated Debt Securities Indenture).
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______________________
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*
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To be filed as an amendment to this registration statement or as an exhibit to an Exchange Act report of the Registrant(s) and incorporated herein by reference.
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(1)
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Incorporated herein by reference to Global Sources Ltd.’s (previously named Fairchild (Bermuda), Ltd.) annual report on Form 20-F (File No. 000-30678), as filed with the Securities and Exchange Commission on June 30, 2000.
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(2)
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Incorporated herein by reference to Form 6-K filed with the Securities and Exchange Commission on May 6, 2002.
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(3)
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Incorporated herein by reference to the Registration Statement of Global Sources Ltd. on Form F-3 filed with the Securities and Exchange Commission on April 12, 2004.
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Exhibit 5.1
[Letterhead of Appleby]
Our Ref: 123940.0029
2 June 2015
Global Sources Ltd.
Canon’s Court
22 Victoria Street
Hamilton HM 12
Bermuda
Dear Sirs,
Global Sources Ltd. (the Company)
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1.
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This opinion as to Bermuda law is addressed to you in connection with the filing by the Company with the Securities and Exchange Commission, Washington D.C. 20549 (the SEC) of a Registration Statement under the Securities Act of 1933, as amended (the Securities Act) on Form F-3 (the Registration Statement), as amended by the Pre-Effective Amendment No.1 to the Registration Statement, with respect to any of the following securities of the Company (the Securities):
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(i)
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common shares (Common Shares);
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(ii)
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preference shares (Preference Shares);
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(iii)
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unsecured senior or subordinated debt securities (Debt Securities);
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(iv)
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warrants to purchase Common Shares (Common Share Warrants);
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(v)
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warrants to purchase Preference Shares (Preference Share Warrants);
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(vi)
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warrants to purchase Debt Securities (Debt Warrants);
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(vii)
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share purchase contracts to purchase Common Shares (Share Purchase Contracts);
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(viii)
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share purchase units (Share Purchase Units); and
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(ix)
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units consisting of two or more of the Securities described in paragraphs (i) through (viii) above,
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to be issued from time to time under the Securities Act for an aggregate initial offering price not to exceed US$300,000,000.00, as well as in connection with the registration of a certain number of common shares of par value US$0.01 each of the Company (Shares) to be sold pursuant to the Registration Statement.
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2.
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For the purpose of this opinion, we have examined and relied upon the following:-
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(a)
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the entries and filings shown in respect of the Company on the file of the Company maintained at the offices of the Registrar of Companies, as revealed by a search conducted on 4 May 2015 and completed at 10:45a.m., Bermuda time, and updated on 27 May 2015 and completed at 12:00 p.m., Bermuda time;
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Global sources Ltd.
2 June 2015
Page 1
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(b)
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the entries and filings shown in respect of the Company in the Supreme Court Cause Book and Register of Judgements maintained at the Registry of the Supreme Court of Bermuda, as revealed by a search conducted on 4 May 2015 and completed at 9:30 a.m., Bermuda time, and updated on 27 May 2015 and completed at 11:45 a.m., Bermuda time;
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(c)
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a copy of the Registration Statement filed on 12 May 2015, as furnished by the Company on 13 May 2015 and approved for filing with the SEC by the Company, and a copy of the draft Pre-Effective Amendment No.1 to the Registration Statement, as furnished by Messrs. Cahill Gordon & Reindel LLP on 26 May 2015;
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(d)
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a copy of the Registration Statement under the Securities Act on Form F-3 filed by the Company with the SEC on 12 April 2004 (the 2004 Registration Statement);
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(e)
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a copy of the form of Indenture in respect of senior Debt Securities (the Senior Indenture) to be entered into on the issue of senior Debt Securities between the Company and a trustee, referred to as Exhibit 4.2 and contained in the 2004 Registration Statement;
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(f)
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a copy of the form of Indenture in respect of subordinated Debt Securities (the Subordinated Indenture) to be entered into on the issue of subordinated Debt Securities between the Company and a trustee, referred to as Exhibit 4.4 and contained in the 2004 Registration Statement,
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(the Senior Indenture and the Subordinated Indenture, collectively referred to hereinafter as the Subject Agreements);
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(g)
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copies of the Certificate of Incorporation, the Memorandum of Association (subscribed on 8 November 1999) and Bye-Laws (adopted on 17 November 1999 and amended up to 11 June 2008) of the Company (collectively referred to as the Constitutional Documents);
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(h)
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a copy of the Register of Directors and Officers in respect of the Company;
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(i)
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a copy of the Computershare Capital Breakdown Report dated 21 April 2015 setting out the capital breakdown of the Company as at 28 February 2015;
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(j)
|
a copy of the register of members in respect of the Company as at 30 April 2015, prepared by Computershare Trust Company, N.A., the branch share registrar of the Company (the Register of Members);
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(k)
|
a copy of the Certificate of Compliance dated 21 April 2015 (the Certificate of Compliance) issued by the Registrar of Companies in Bermuda in respect of the Company;
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(l)
|
a copy of the unanimous written resolutions of the directors of the Company dated 4 May 2015 (the Resolutions);
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(m)
|
a copy of the Director's Certificate dated 28 May 2015 (the Certificate) in respect of the Company, confirming certain matters of fact and opinion;
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(n)
|
a copy of the “Foreign Exchange Letter” issued by the Bermuda Monetary Authority, Hamilton Bermuda in relation to the Company; and
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(o)
|
a copy of the “Tax Assurance” issued by the Registrar of Companies in Bermuda for the Minister of Finance in relation to the Company.
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3.
|
We have made no investigation of, and express no opinion as to, the laws of any jurisdiction other than Bermuda.
|
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(a)
|
that the Subject Agreements, when executed, will be enforceable in accordance with their terms under the laws of the State of New York by which they are expressed to be governed;
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(b)
|
the capacity, power and authority of all parties other than the Company to enter into and to perform their respective obligations under the Subject Agreements;
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(c)
|
the authenticity, accuracy and completeness of all documents examined by us submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, notarised, scanned, faxed or photostatic copies;
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(d)
|
the genuineness of all signatures, seals and chops (if any) on the Subject Agreements and all other documents which we have examined;
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(e)
|
the accuracy and completeness of all factual representations, warranties or statements of fact or law, other than as to the laws of Bermuda made in any of the documents examined by us;
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(f)
|
that there have been no amendments to the Constitutional Documents as referred to above;
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(g)
|
that the Resolutions are a full and accurate record of resolutions duly passed by the directors of the Company and that the Resolutions have not been amended or rescinded and are in full force and effect and that there is no matter affecting the authority of the directors of the Company to enter into the Subject Agreements, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein;
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(h)
|
that the Subject Agreements are in the proper legal form to be admissible in evidence and enforced in the courts of the State of New York and in accordance with the laws of the State of New York;
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(i)
|
that none of the parties to the Subject Agreements maintains or will maintain a place of business (as defined in section 4(6) of the Investment Business Act 2003), in Bermuda;
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(j)
|
that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by the execution or delivery of the Subject Agreements or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Subject Agreements is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;
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(k)
|
that the Subject Agreements, when executed, will have been duly authorised, executed and delivered by the parties thereto other than the Company, and the performance thereof is within the capacity and powers of each such party thereto, other than the Company, that the Subject Agreements, when executed, will constitute legal, valid and binding obligations of each such party, other than the Company, under the laws of its jurisdiction of incorporation or its jurisdiction of formation, and that each such party to which the Company purportedly delivered the Subject Agreements will have actually received and accepted delivery of such Subject Agreements;
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(l)
|
that the records which were the subject of the searches referred to in paragraphs 2(a) and (b) were complete and accurate at the time of such searches and that the information disclosed by our searches has not been materially altered and that the searches did not fail to disclose any information material for the purposes of this opinion which had been lodged for filing or registration or should have been delivered for filing or registration, but was not disclosed or did not appear on the public file or register at the time of the searches;
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(m)
|
that the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent;
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(n)
|
that no person has any express or constructive knowledge of any circumstance whereby any director of the Company, when the board of directors of the Company passed the Resolutions, failed to discharge his fiduciary duty owed to the Company and to act honestly and in good faith with a view to the best interests of the Company;
|
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(o)
|
that when the Company enters into its obligations under the Subject Agreements, it will do so in good faith for the purpose of carrying on its business and that, when it does so, there will be reasonable grounds for believing that the transactions contemplated by the Subject Agreements would benefit the Company;
|
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(p)
|
that the directors of the Company are, as at the date of the Resolutions, and will be at the date of the entry of the Subject Agreements by the Company, of the opinion that the entry of the Subject Agreements by the Company and the transactions contemplated therein are in the best interest of the Company and for its benefit (should such Subject Agreements be entered into);
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|
(q)
|
that the directors of the Company are not aware of any charges registered or unregistered against the assets of the Company or other form of impediment (collectively, the Impediments) as at the date of the Resolutions, and will not be aware of any such Impediments at the date of the entry of the Subject Agreements by the Company, which might prevent the Company from giving and honouring the Subject Agreements (should such Subject Agreements be entered into);
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(r)
|
that the directors of the Company are of the opinion that as of the date of the Resolutions, and will be at the date of the entry of the Subject Agreements by the Company of the opinion that, the financial circumstances of the Company are such as to enable it to meet its obligations under the Subject Agreements (should such Subject Agreements be entered into);
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2 June 2015
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(s)
|
that each transaction to be entered into pursuant to the Subject Agreements is entered into in good faith and for full value and will not have the effect of preferring one creditor over another;
|
|
(t)
|
that the form of the Subject Agreements and the Registration Statement which we have examined for the purposes of this opinion do not differ in any material respect from those approved by the Board of Directors pursuant to the Resolutions, and that, when filed (in respect of the Registration Statement) or executed and delivered (in respect of the Subject Agreements), the Registration Statement and the Subject Agreements will be in a form which does not differ in any material respect from the forms which we have examined for the purposes of this opinion; and
|
|
(u)
|
that in connection with the transactions contemplated by the Subject Agreements none of the parties will act in violation of any United Nations sanction extended by statutory instrument to Bermuda.
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|
5.
|
Based on the foregoing and subject to the reservations set out below and subject to any matter not disclosed to us, we are of the opinion that:-
|
|
(a)
|
The Company is an exempted company, duly incorporated with limited liability and validly existing under the laws of Bermuda, possessing perpetual corporate existence with the capacity to sue and be sued in its own name and is in good standing under the laws of Bermuda.
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|
(b)
|
Any Common Shares and any Preference Shares, when issued and upon the payment of the consideration for the same, as described in the prospectus that forms part of the Registration Statement, provided that such issue is made subject to and in accordance with the Constitutional Documents of the Company and in accordance with Bermuda law, will be validly issued, fully paid and non-assessable.
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|
(c)
|
Based solely upon a review of the Register of Members and the Certificate, the issued Shares are validly issued, fully paid and non-assessable.
|
|
(d)
|
The senior Debt Securities and the subordinated Debt Securities, when issued as described in accordance with the terms of the applicable Subject Agreements, will constitute the valid and binding obligations of the Company in accordance with the terms of thereof.
|
|
(e)
|
Upon the issuance of the Common Share Warrants, the Preference Share Warrants, the Debt Warrants, Share Purchase Contracts and Share Purchase Units and the payment of the consideration for the same, such Common Share Warrants, Preference Share Warrants, Debt Warrants, Share Purchase Contracts and Share Purchase Units will constitute the valid and binding obligations of the Company in accordance with the terms thereof.
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|
(f)
|
A final and conclusive judgment in the courts of the State of New York against the Company under the Subject Agreements under which a sum of money is payable (not being a sum of money payable in respect of taxes or other charges of a like nature, in respect of a fine or other penalty, or in respect of multiple damages as defined in The Protection of Trading Interests Act 1981) would be enforced as a debt against the Company, upon the filing of the certified judgment with the Supreme Court of Bermuda, by an action in the Supreme Court of Bermuda without re-examination of the merits of the case under the common law doctrine of obligation, provided that the court which gave the judgment was competent to hear the action in accordance with private international law principles as applied in Bermuda and that such judgment was not obtained by fraud or that its enforcement would not be contrary to public policy in Bermuda or that the proceedings in which the same was obtained were not contrary to natural justice.
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No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a foreign judgment. Court fees will be payable in connection with proceedings for enforcement.
|
(g)
|
Based solely upon the searches referred to in paragraphs 2(a) and (b):
|
|
|
(i)
|
no litigation, administrative or other proceeding of or before any governmental authority of Bermuda is pending against the Company;
|
|
|
(ii)
|
no notice to the Registrar of Companies in Bermuda of the passing of a resolution of members or creditors of the Company to wind up the Company or the appointment of a liquidator or receiver over the Company has been given; and
|
|
|
(iii)
|
no petition to wind up the Company or application to reorganise its affairs pursuant to a Scheme of Arrangement or application for the appointment of a receiver has been filed with the Supreme Court.
|
|
6.
|
Our reservations are as follows:-
|
|
(a)
|
We express no opinion as to whether specific performance or injunctive relief, being equitable remedies, would necessarily be available in respect of any of the obligations of the Company under the Subject Agreements. In particular, we express no opinion as to the enforceability of any present or future waiver of any provision of law (whether substantive or procedural) or of any right or remedy which might otherwise be available presently or in the future under the Subject Agreements.
|
|
(b)
|
The obligations of the Company under the Subject Agreements will be subject to any laws from time to time in effect relating to bankruptcy or liquidation or any other laws or other legal procedures affecting generally the enforcement of creditors' rights and may also be the subject of a statutory limitation of the time within which proceedings may be brought. Without prejudice to the generality of the foregoing, we express no opinion as to whether any contractual right of set-off contained in the Subject Agreements will conflict with the statutory right of set-off applicable in an insolvent winding up of the Company.
|
|
(c)
|
The enforcement of a judgment pursuant to paragraph 5(e) above may involve the conversion of the judgment debt into Bermuda dollars as of the date of the foreign court judgment. Execution of such a judgment against assets situated in Bermuda may involve the conversion of those assets into Bermuda dollars but the Bermuda Monetary Authority has indicated that its present policy is to give the necessary consents to enable recovery to be made in the currency of the debt.
|
|
(d)
|
Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of Bermuda may refuse to enforce it to the extent that such performance would be illegal under the laws of or contrary to the public policy of such other jurisdiction.
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(e)
|
Any provision to the effect that certain calculations or certificates will be conclusive and binding upon the parties will not necessarily be effective if such calculations or certificates are fraudulent or erroneous on their face and will not necessarily prevent judicial enquiry into the merits of any claim by an aggrieved party.
|
|
(f)
|
To the extent that any provisions of the Subject Agreements require the payment by the Company of a higher rate of interest on overdue amounts than on amounts which are current, we express no opinion as to the validity or the binding effect thereof. A Bermuda court, even if it were applying the laws of another jurisdiction, might not give effect to such a provision if it could be established that the amount expressed as being payable was in the nature of a penalty, that is to say, a requirement for a stipulated sum to be paid irrespective of, or necessarily greater than, the loss likely to be sustained.
|
|
(g)
|
Section 9 of the Interest and Credit Charges (Regulation) Act 1975 provides that the Bermuda courts have discretion as to the amount of interest if any payable on the amount of a judgment after the date of judgment. If the court does not exercise that discretion, then interest will be paid at the statutory rate which is currently seven per cent per annum.
|
|
(h)
|
We express no opinion as to the validity or binding effect of any provision in the Subject Agreements which provides for the severance of illegal, invalid or unenforceable provisions.
|
|
(i)
|
The term “enforceable” as used in this opinion means there is a way of ensuring that each party performs an agreement or that there are remedies available for breach.
|
|
(j)
|
We have relied upon statements and representations made to us in the Certificate provided to us by a director of the Company for the purposes of this opinion. We have made no independent verification of the matters referred to in the Certificate, and we qualify our opinion to the extent that the statements or representations made in the Certificate are not accurate in any respect.
|
|
(k)
|
Searches of the Register of Companies at the office of the Registrar of Companies and of the Supreme Court Cause Book at the Registry of the Supreme Court in Bermuda (Cause Book) are not conclusive and it should be noted that the Register of Companies and the Supreme Court Cause Book do not reveal:
|
|
|
(i)
|
details of matters which have been lodged for filing or registration which as a matter of best practice of the Registrar of Companies or the Registry of the Supreme Court would have or should have been disclosed on the public file, the Cause Book or the Judgment Book, as the case may be, but for whatever reason have not actually been filed or registered or are not disclosed or which, notwithstanding filing or registration, at the date and time the search is concluded are for whatever reason not disclosed or do not appear on the public file, the Cause Book or Judgment Book;
|
|
|
(ii)
|
details of matters which should have been lodged for filing or registration at the Registrar of Companies or the Registry of the Supreme Court but have not been lodged for filing or registration at the date the search is concluded;
|
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|
|
(iii)
|
whether an application to the Supreme Court for a winding-up petition or for the appointment of a receiver or manager has been prepared but not yet been presented or has been presented but does not appear in the Cause Book at the date and time the search is concluded;
|
|
|
(iv)
|
whether arbitration or administrative proceedings are pending or whether any proceedings are threatened, or whether any arbitrator has been appointed; or
|
|
|
(v)
|
whether a receiver or manager has been appointed privately pursuant to the provisions of a debenture or other security, unless notice of the fact has been entered in the Register of Charges in accordance with the provisions of the Act.
|
Furthermore, in the absence of a statutorily defined system for the registration of charges created by companies incorporated outside Bermuda (overseas companies) over their assets located in Bermuda, it is not possible to determine definitively from searches of the Register of Charges maintained by the Registrar of Companies in respect of such overseas companies what charges have been registered over any of their assets located in Bermuda or whether any one charge has priority over any other charge over such assets.
|
(l)
|
In order to issue this opinion we have carried out the searches referred to in paragraphs 2(a) and (b) and have not enquired as to whether there has been any change since the date of such searches.
|
|
(m)
|
In paragraph (5)(a) above, the term “good standing” means that the Company has received a Certificate of Compliance from the Registrar of Companies indicating only that it has neither failed to make any filing with any Bermuda governmental authority nor to pay any Bermuda governmental fee or tax, which might make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda.
|
|
(n)
|
Any reference in this opinion to shares being “non-assessable” shall mean, in relation to fully-paid shares of the Company and subject to any contrary provision in any agreement in writing between the Company and the holder of shares, that: no shareholder shall be obliged to contribute further amounts to the capital of the Company, either in order to complete payment for their shares, to satisfy claims of creditors of the Company, or otherwise; and no shareholder shall be bound by an alteration of the Memorandum of Association or Bye-Laws of the Company after the date on which he became a shareholder, if and so far as the alteration requires him to take, or subscribe for additional shares, or in any way increases his liability to contribute to the share capital of, or otherwise to pay money to, the Company.
|
This opinion is addressed to you in connection with the registration of Securities with the SEC and is neither to be transmitted to any other person, nor relied upon by any other person or for any other purpose nor quoted or referred to in any public document nor filed with any governmental agency or person, without our prior written consent, except as may be required by law or regulatory authority. We consent to the filing of this opinion as an exhibit to the Registration Statement of the Company.
We also consent to the reference to our Firm under the caption “Legal Matters” in the Registration Statement.
Global sources Ltd.
2 June 2015
Page 8
Further, this opinion speaks as of its date and is strictly limited to the matters stated herein and we assume no obligation to review or update this opinion if applicable law or the existing facts or circumstances should change.
This opinion is governed by and is to be construed in accordance with Bermuda law. It is given on the basis that it will not give rise to any legal proceedings with respect thereto in any jurisdiction other than Bermuda.
Yours faithfully,
/s/ Appleby
Global sources Ltd.
2 June 2015
Page 9
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