EXHIBIT 4.11
$500,000,000
FLEXTRONICS INTERNATIONAL LTD.
1% CONVERTIBLE SUBORDINATED NOTES DUE AUGUST 1, 2010
REGISTRATION RIGHTS AGREEMENT
August 5, 2003
Credit Suisse First Boston LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Banc of America Securities LLC
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
ABN AMRO Rothschild LLC
Fleet Securities, Inc.
BNP Paribas Securities Corp.
RBC Dominion Securities Corporation
Scotia Capital (USA) Inc.
c/o Credit Suisse First Boston LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Flextronics International Ltd., a Singapore corporation (the
"COMPANY"), proposes to issue and sell to Credit Suisse First Boston LLC,
Citigroup Global Markets Inc., Deutsche Bank Securities Inc., ▇▇▇▇▇▇ Brothers
Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Banc of America Securities LLC, Bear, ▇▇▇▇▇▇▇ & Co.
Inc., ABN AMRO Rothschild LLC, Fleet Securities, Inc., (the "INITIAL
PURCHASERS"), upon the terms set forth in a purchase agreement dated July 31,
2003 (the "PURCHASE AGREEMENT"), $500,000,000 aggregate principal amount (plus
up to an additional $30,000,000 principal amount) of its 1% Convertible
Subordinated Notes due August 1, 2010 (the "NOTES"). The Notes will be issued
pursuant to an Indenture, dated as of August 5, 2003 (the "INDENTURE"), between
the Company, and ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, as trustee
(the "TRUSTEE"). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company agrees with the Initial Purchasers, for the
benefit of (i) the Initial Purchasers as Initial Purchasers and (ii) the
beneficial owners (including the Initial Purchasers) from time to time of the
Notes and of the Underlying Common Stock (as defined herein) issued upon
conversion of the Notes (each of the foregoing, a "HOLDER" and, collectively,
the "HOLDERS"), as follows:
1. Shelf Registration.
(a) The Company shall prepare and file with the Securities and
Exchange Commission (the "COMMISSION") in no event later than 90 days (such 90th
day being a "FILING DEADLINE") after the latest date on which the Initial
Purchasers purchase the Notes pursuant to the Purchase Agreement (the "CLOSING
DATE"), a Shelf Registration Statement for an offering to be made on a delayed
or continuous basis pursuant to Rule 415 of the Securities Act of 1933, as
amended (the "SECURITIES ACT") (a "SHELF REGISTRATION STATEMENT"), registering
the resale from time to time by Holders thereof (who satisfy certain conditions
relating to the provision of information in connection with the Shelf
Registration Statement) of all of the Registrable Securities (defined herein)
(the "INITIAL SHELF REGISTRATION STATEMENT"). The Initial Shelf Registration
Statement shall be on an appropriate form under the Securities Act permitting
registration of such Registrable Securities for resale by such Holders from time
to time in accordance with the methods of distribution elected by the Holders
and set forth in the Initial Shelf Registration
Statement. The Company shall use all commercially reasonable efforts to cause
the Initial Shelf Registration Statement to be declared effective under the
Securities Act as promptly as is practicable but in any event within one hundred
and eighty (180) days after the Closing Date (the "EFFECTIVENESS DEADLINE
DATE"), and to keep the Initial Shelf Registration Statement (or any Subsequent
Shelf Registration Statement) continuously effective under the Securities Act to
permit the prospectus included therein to be lawfully delivered by the Holders
of the Registrable Securities, for a period of two years (or for such longer
period if extended pursuant to Section 2(h) below) from the latest date of
original issuance of the Notes or such shorter period that will terminate when
all the Registrable Securities covered by the Shelf Registration Statement (i)
have been transferred pursuant thereto or Rule 144 under the Securities Act, or
any similar provision (but not Rule 144A), (ii) are, with respect to such
securities held by non-affiliates of the Company, eligible to be sold to the
public pursuant to Rule 144(k) under the Securities Act, or any successor rule
thereof or (iii) have ceased to be outstanding (such period, the "EFFECTIVENESS
PERIOD"). Subject to Section 2(h) hereof, the Company shall be deemed not to
have used all commercially reasonable efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Registrable Securities covered thereby
not being able to offer and sell such Registrable Securities during that period,
unless such action is required by applicable law. At the time the Initial Shelf
Registration Statement is declared effective, each Holder who has provided the
Company with an appropriately completed Notice and Questionnaire (as defined
herein) on or prior to the date five (5) Business Days prior to such time of
effectiveness and who holds Registrable Securities, shall be named as a selling
securityholder in the Initial Shelf Registration Statement and the related
prospectus in such a manner as to permit such Holder to deliver such prospectus
to purchasers of Registrable Securities in accordance with applicable law. None
of the Company's securityholders (other than the Holders of Registrable
Securities) shall have the right to include any of the Company's securities in
the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement (defined below) ceases to be effective for any
reason at any time during the Effectiveness Period (other than because all
Registrable Securities registered thereunder have been resold pursuant thereto
or have otherwise ceased to be Registrable Securities), the Company shall use
all commercially reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within thirty (30)
days of such cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use all
commercially reasonable efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as is practicable after such filing
and to keep such Subsequent Shelf Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement,
if required by the Securities Act or, to the extent to which the Company does
not reasonably object, as reasonably requested by (i) the Initial Purchasers in
the event that it is participating in the Shelf Registration Statement or (ii)
the Trustee on behalf of a majority in interest of the registered Holders.
(d) Each Holder of Registrable Securities agrees that if such
▇▇▇▇▇▇ wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related prospectus, it will do so only in accordance with this
Section 1(d) and Section 2(h). Each Holder of Registrable Securities wishing to
sell Registrable Securities pursuant to a Shelf Registration Statement and
related prospectus agrees to deliver a Notice and Questionnaire to the Company
at least five (5) Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration Statement. From and after
the date the Initial Shelf Registration Statement is declared effective, the
Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered (i) if required by applicable law, file with the
Commission a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the related
prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required under the Securities Act so that
the Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related prospectus in
such a manner as to permit such Holder to deliver such prospectus to purchasers
of the Registrable Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf Registration
Statement, use all commercially reasonable efforts to cause such post-
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effective amendment to be declared effective under the Securities Act as
promptly as is practicable, but in any event by the date (the "AMENDMENT
EFFECTIVENESS DEADLINE DATE") that is forty-five (45) days after the date such
post-effective amendment is required by this clause to be filed; (ii) provide
such Holder copies of any documents filed pursuant to clause (i) of this Section
1(d); and (iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment filed
pursuant to clause (i) of this Section 1(d); provided that if such Notice and
Questionnaire is delivered during a Deferral Period (as defined in Section
2(h)), the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
2(h). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that has not submitted a Notice
and Questionnaire to the Company as a selling securityholder in any Shelf
Registration Statement or related prospectus and (ii) the Amendment
Effectiveness Deadline Date shall be extended by up to ten (10) days from the
expiration of a Deferral Period (and the Company shall incur no obligation to
pay Additional Interest (as defined in Section 5(a)) during such extension) if
such Deferral Period is in effect on the Amendment Effectiveness Deadline Date.
Any Holder who, subsequent to the date the Initial Shelf Registration Statement
is declared effective, provides a Notice and Questionnaire required by this
Section 1(d) pursuant to the provisions of this Section (whether or not such
Holder has supplied the Notice and Questionnaire at the time the Initial Shelf
Registration Statement was declared effective) shall be named as a selling
securityholder in the Shelf Registration Statement and/or related prospectus,
each as amended or supplemented, in accordance with the requirements of this
Section 1(d).
(e) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement and as of the date of filing any
amendment or supplement, as applicable, (i) to comply in all material respects
with the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
(f) As used in this Agreement, the following terms shall have the
following meanings:
"APPLICABLE CONVERSION PRICE" as of any date of determination
means the Conversion Price in effect as of such date of determination
or, if no Notes are then outstanding, the Conversion Price that would
be in effect were Notes then outstanding.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City
of New York are authorized or obligated by law or executive order to
close.
"COMMON STOCK" means the shares of common stock, S$0.01 par
value per share, of the Company and any other shares of common stock as
may constitute "Common Stock" for purposes of the Indenture, including
the Underlying Common Stock.
"CONVERSION PRICE" has the meaning assigned to such term in
the Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"NOTICE AND QUESTIONNAIRE" means a written notice delivered to
the Company by a Holder containing any information with respect to the
Holder necessary to amend the Shelf Registration Statement or
supplement the related prospectus with respect to the intended
distribution of Registrable Securities by such Holder.
"NOTICE HOLDER" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such
date and holds Registrable Securities as of such date.
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"REGISTRABLE SECURITIES" means the Notes, until such Notes
have been converted into or exchanged for the Underlying Common Stock
and, at all times subsequent to any such conversion or exchange, the
Underlying Common Stock and any securities into or for which such
Underlying Common Stock have been converted or exchanged, and any
security issued with respect thereto upon any stock dividend, split or
similar event until, in the case of any such security, (A) the earliest
of (i) its effective registration under the Securities Act and resale
in accordance with the Shelf Registration Statement covering it, (ii)
expiration of the holding period that would be applicable thereto under
Rule 144(k) under the Securities Act were it not held by an affiliate
of the Company or (iii) its transfer to the public pursuant to Rule 144
under the Securities Act, or any successor rule thereof, and (B) as a
result of the event or circumstance described in any of the foregoing
clauses (i) through (iii), the legends with respect to transfer
restrictions required under the Indenture are removed or removable in
accordance with the terms of the Indenture or such legend, as the case
may be.
"UNDERLYING COMMON STOCK" means the Common Stock into which
the Notes are convertible or issued upon any such conversion.
2. Registration Procedures. In connection with the Shelf
Registration Statement contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to the Initial Purchasers, prior
to the filing thereof with the Commission, a copy of any Shelf Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and the Company shall use all commercially
reasonable efforts to reflect in the Shelf Registration Statement, when so filed
with the Commission, such comments as the Initial Purchasers reasonably may
propose; and (ii) include the names of the Holders who propose to sell
Registrable Securities pursuant to the Shelf Registration Statement and who
comply with the provisions hereof as selling securityholders.
(b) The Company shall give written notice to the Initial
Purchasers and the Holders (upon the occurrence of the event contemplated by
clause (i) below) and the Notice Holders (upon the occurrence of any of the
events contemplated by clauses (ii) through (vii) below) (which notice pursuant
to clauses (iii) through (vii) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been made):
(i) of its intention to file the Shelf
Registration Statement (which notice may be delivered through
The Depository Trust Company, a New York corporation ("DTC");
(ii) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective (which notice may be
delivered through DTC);
(iii) of any request by the Commission for
amendments or supplements to the Shelf Registration Statement
or the prospectus included therein or for additional
information;
(iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any proceedings
for that purpose;
(v) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(vi) of the happening of any event that requires
the Company to make changes in the Shelf Registration
Statement or the prospectus in order that the Shelf
Registration Statement or the related prospectus neither
contain an untrue statement of a material fact nor omit to
state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they
were made) not misleading; and
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(vii) the occurrence or existence of any pending
corporate development with respect to the Company that the
Company believes may be material and that, in the
determination of the Company, makes it inadvisable and not in
the best interest of the Company to allow continued
availability of the Shelf Registration Statement and the
related prospectus.
(c) The Company shall make every commercially reasonable effort to
obtain the withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale.
(d) The Company shall furnish to each Holder of Registrable
Securities named in the Shelf Registration Statement, as amended, or any
prospectus, as amended or supplemented, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Effectiveness Period, deliver to
each Holder of Registrable Securities named in the Shelf Registration Statement,
as amended, or any prospectus, as amended or supplemented, without charge, as
many copies of the prospectus (including each preliminary prospectus) included
in the Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any amendment or
supplement thereto by each of the selling Holders of the Registrable Securities
in connection with the offering and sale of the Registrable Securities covered
by the prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(f) Prior to any public offering of the Registrable Securities
pursuant to any Shelf Registration Statement the Company shall register or
qualify or cooperate with the Holders of the Registrable Securities included
therein and their respective counsel in connection with the registration or
qualification of the Registrable Securities for offer and sale under the
securities or "blue sky" laws of such states of the United States as any Holder
of Registrable Securities reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Registrable Securities covered by such Shelf Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing the Registrable Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders may request a reasonable period of
time prior to sales of the Registrable Securities pursuant to such Shelf
Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs
(iii) through (vi) of Section 2(b) above during the period for which the Company
is required to maintain an effective Shelf Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the Shelf
Registration Statement or a supplement to the related prospectus and any other
required document so that, as thereafter delivered to Holders or purchasers of
Registrable Securities, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the Initial
Purchasers and the Holders of Registrable Securities in accordance with
paragraphs (iii) through (vi) of Section 2(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made or the
Company otherwise notifies the Initial Purchasers and the Holders of Registrable
Securities of its election to suspend the availability of the Shelf Registration
Statement and related prospectus pursuant to Section 2(b)(vii) above, then the
Initial Purchasers and the Holders of Registrable Securities shall suspend use
of such prospectus (such period during which the availability of the Shelf
Registration Statement and any related prospectus is suspended being a "DEFERRAL
PERIOD"), and the period of effectiveness of the Shelf Registration Statement
provided for in Section 1(a) above shall each be extended by the number of days
from and including the date of the giving of such notice to and
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including the date when the Initial Purchasers and the Holders of Registrable
Securities shall have been advised in writing by the Company that the prospectus
may be used or has received such amended or supplemented prospectus pursuant to
this Section 2(h). The Company will use all commercially reasonable efforts to
ensure that the use of the prospectus may be resumed as promptly as is
practicable, except that in the case of suspension of the availability of the
Shelf Registration Statement and related prospectus pursuant to Section
2(b)(vii) above, the Company shall not be required to take such action until
such time as it shall no longer determine that continued availability of the
Shelf Registration Statement and the related prospectus is inadvisable and not
in the best interests of the Company. The Company shall be entitled to exercise
its right under this Section 2(h) to suspend the availability of the Shelf
Registration Statement or any prospectus, without incurring or accruing any
obligation to pay Additional Interest pursuant to Section 5(a), for one or more
periods not to exceed 45 days in any 90-day period and not to exceed, in the
aggregate, 120 days in any 12-month period.
(i) Not later than the effective date of the Initial Shelf
Registration Statement, the Company will provide a CUSIP number for the
Registrable Securities and provide the applicable trustee with printed
certificates for the Notes in a form eligible for deposit with The Depository
Trust Company.
(j) The Company shall prepare and file with the Commission such
amendments and post-effective amendments to each Shelf Registration Statement as
may be necessary to keep such Shelf Registration Statement continuously
effective for the applicable period specified in Section 1(a) and shall cause
the related prospectus to be supplemented by any required prospectus supplement
to be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act. The Company will comply with all rules and regulations of
the Commission to the extent and so long as they are applicable to the Shelf
Registration Statement and will make generally available to its securityholders
(or otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days (or such longer period as permitted by the Commission
in the event the Company timely files a notice with the Commission pursuant to
Rule 12b-25 promulgated under the Exchange Act) after the end of a 12-month
period (or 90 days, if such period is a fiscal year (or such longer period as
permitted by the Commission in the event the Company timely files a notice with
the Commission pursuant to Rule 12b-25 promulgated under the Exchange Act))
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Shelf Registration Statement, which statement
shall cover such 12-month period.
(k) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended, in a timely manner and containing
such changes, if any, as shall be necessary for such qualification. In the event
that such qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(l) The Company may require each Holder of Registrable Securities
to be sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of the
Registrable Securities as the Company may from time to time reasonably require
for inclusion in the Shelf Registration Statement, and the Company may exclude
from such registration the Registrable Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as any Holder shall reasonably request in order
to facilitate the disposition of the Registrable Securities pursuant to any
Shelf Registration Statement.
(n) The Company shall (i) make available, at reasonable times and
in a reasonable manner, for inspection by a representative of the Holders of
Registrable Securities, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of Registrable Securities or any such
underwriter, all relevant financial and other records, pertinent corporate
documents and properties of the Company and (ii) cause the Company's officers,
directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of Registrable Securities or any
such underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement prior to its effectiveness, in each case, as shall be
reasonably necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that the
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foregoing inspection and information gathering shall be coordinated on behalf of
the Initial Purchasers by Credit Suisse First Boston LLC and on behalf of the
other parties, by one counsel designated by and on behalf of such other parties
as described in Section 3 hereof; and provided further, that any information
that is designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by law, or
such information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality.
(o) In connection with any proposed underwritten offering, the
Company, if requested by any Holder of Registrable Securities named in a Shelf
Registration Statement, as amended, or any prospectus, as amended or
supplemented, shall cause (i) its counsel to deliver an opinion and updates
thereof relating to the Registrable Securities in customary form addressed to
such Holders and the managing underwriters, if any, thereof and dated, in the
case of the initial opinion, the effective date of such Shelf Registration
Statement (it being agreed that the matters to be covered by such opinion shall
include, without limitation, the due incorporation and good standing of the
Company and its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(m) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
applicable Registrable Securities; the absence of material legal or governmental
proceedings involving the Company and its subsidiaries; the absence of
governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable Registrable
Securities, or any agreement of the type referred to in Section 2(m) hereof; the
compliance as to form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture with the requirements of
the Securities Act and the Trust Indenture Act, respectively; and, as of the
date of the opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case may be,
the absence from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, and from any documents incorporated by
reference therein of an untrue statement of a material fact or the omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act); (ii) its officers to execute and
deliver all customary documents and certificates and updates thereof requested
by any underwriters of the applicable Registrable Securities and (iii) its
independent public accountants (and the independent accountants with respect to
any other entity for which financial information is provided in the Shelf
Registration Statement) to provide to the selling Holders of the applicable
Registrable Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
(p) The Company will use all commercially reasonable efforts to
(a) if the Notes have been rated prior to the initial sale of such Notes,
confirm such ratings will apply to the Registrable Securities covered by a Shelf
Registration Statement, or (b) if the Notes were not previously rated, cause the
Registrable Securities covered by a Shelf Registration Statement to be rated
with the appropriate rating agencies, if so requested by Holders of a majority
in aggregate principal amount of Registrable Securities covered by such Shelf
Registration Statement, or by the managing underwriters, if any.
(q) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES") of the
National Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the Company will
assist such broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule 2720, shall
so require, engaging a "qualified independent underwriter" (as defined in Rule
2720) to participate in the preparation of the Shelf Registration Statement
relating to such Registrable Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering contemplated by
such Shelf Registration Statement is an underwritten offering or is made through
a placement or sales agent, to recommend the yield of such Registrable
Securities, (ii) indemnifying any such qualified independent underwriter to the
extent of
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the indemnification of underwriters provided in Section 5 hereof and (iii)
providing such information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Rules.
(r) The Company shall use all commercially reasonable efforts to
take all other steps necessary to effect the registration of the Registrable
Securities covered by a Shelf Registration Statement contemplated hereby.
(s) The Company shall as promptly as practicable (if reasonably
requested by any Holder who has delivered a Notice and Questionnaire and holds
Registrable Securities or by the Initial Purchasers (with respect to any portion
of an unsold allotment from the original offering if such Initial Purchasers is
participating in the Shelf Registration Statement)) incorporate in a prospectus
supplement or post-effective amendment to the Shelf Registration Statement such
information as such Holder or Initial Purchasers shall, on the basis of an
opinion of nationally recognized counsel experienced in such matters, determine
to be required to be included therein and make any required filings of such
prospectus supplement or such post-effective amendment; provided that the
Company shall not be required to take any actions under this Section 2(s) that
are not, in the reasonable opinion of counsel for the Company, in compliance
with applicable law.
(t) The Company shall use all commercially reasonable efforts to
cause the Underlying Common Stock to be listed on any securities exchange or any
automated quotation system on which similar securities issued by the Company are
then listed, to the extent the Underlying Common Stock satisfies applicable
listing requirements.
3. Registration Expenses.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless of
whether a Shelf Registration Statement is ever filed or becomes effective,
including without limitation:
(i) all registration and filing fees and
expenses;
(ii) all fees and expenses of compliance with
federal securities and state "blue sky" or securities laws;
(iii) all expenses of printing, messenger and
delivery services and telephone;
(iv) all fees and disbursements of counsel for
the Company;
(v) all application and filing fees in
connection with listing the Underlying Common Stock on a
national securities exchange or automated quotation system
pursuant to the requirements thereof; and
(vi) all fees and disbursements of independent
certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by
or incident to such performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with any Shelf Registration Statement required
by this Agreement, the Company will bear or reimburse the Notice Holders for the
reasonable fees and disbursements of one firm of legal counsel, which shall
initially be ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, but which may, with the written
consent of the Initial Purchasers (which consent shall not be unreasonably
withheld), be another nationally recognized law firm experienced in securities
law matters designated by the Company.
-8-
4. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder
of Registrable Securities and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (each Holder and
such controlling persons are referred to collectively as the "INDEMNIFIED
PARTIES") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases and sales
of the Registrable Securities) to which each Indemnified Party may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of, or are based upon,
any untrue statement or alleged untrue statement of a material fact contained in
a Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration, or
arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in a Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration in reliance upon and in
conformity with written information pertaining to such Holder and furnished to
the Company by or on behalf of such Holder specifically for inclusion therein
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder from whom the person asserting any
such losses, claims, damages or liabilities purchased the Registrable Securities
concerned, to the extent that a prospectus relating to such Registrable
Securities was required to be delivered by such Holder under the Securities Act
in connection with such purchase and any such loss, claim, damage or liability
of such Holder results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Registrable
Securities to such person, a copy of the final prospectus if the Company had
previously furnished copies thereof to such Holder; provided further, however,
that this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party. The Company shall also
indemnify any underwriters, their officers and directors and each person who
controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders if requested by such Holders.
(b) Each Holder of Registrable Securities, severally and not
jointly, will indemnify and hold harmless the Company and each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company or any such controlling person
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in a Shelf Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the Company or
any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to
-9-
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof the indemnifying party will not be liable to such indemnified
party under this Section 4 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. Notwithstanding the indemnifying
party's election to assume the defense of the indemnified party in an action,
the indemnified party shall have the right to employ separate counsel (including
local counsel) and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action, and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 4(d), the Holders of
Registrable Securities shall not be required to contribute any amount in excess
of the amount by which the net proceeds received by such Holders from the sale
of the Registrable Securities pursuant to a Shelf Registration Statement exceeds
the amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this subsection (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Registrable Securities pursuant to a Shelf Registration Statement
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
5. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "ADDITIONAL INTEREST") with respect
to the Registrable Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv) below being
herein called a "REGISTRATION DEFAULT"):
-10-
(i) the Initial Shelf Registration Statement
required by this Agreement is not filed with the Commission on
or prior to the Filing Deadline;
(ii) the Initial Shelf Registration Statement
required by this Agreement is not declared effective by the
Commission on or prior to the Effectiveness Deadline Date;
(iii) the Company has failed to perform its
obligations set forth in Section 1(d) within the time period
required therein; or
(iv) any Shelf Registration Statement required by
this Agreement has been declared effective by the Commission
but such Shelf Registration Statement or related prospectus
thereafter ceases to be effective or useable (subject to the
Company's right to suspend the use of the Shelf Registration
Statement and the prospectus as set forth in Section 2(h)) in
accordance with the provisions of this Agreement and during
the periods specified herein and (A) the Company does not cure
the Shelf Registration Statement within five (5) Business Days
(which shall not be deemed to extend the incurrence and
accrual of any obligation to pay Additional Interest beyond
the time provided for in the last sentence of Section 2(h))
after it ceases to be effective or useable by a post-effective
amendment or additional Shelf Registration Statement being
filed and declared effective or a report filed pursuant to the
Exchange Act or (B) if applicable, the Company does not
terminate any Deferral Period within the time provided for in
the last sentence of Section 2(h).
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on Notes that are Registrable
Securities and the Underlying Common Stock that are Registrable Securities, from
and including the date on which any such Registration Default occurs to, but
excluding, the date on which the Registration Default has been cured, at the
rate per year of (a) 0.25% of the principal amount of the Notes that are
Registrable Securities or 0.25% of the Applicable Conversion Price of such
shares of Underlying Common Stock that are Registrable Securities, as the case
may be (the "ADDITIONAL INTEREST RATE"), to and including the 90th day following
such registration default and (b) such Additional Interest Rate shall increase
to 0.50% of the principal amount of the Notes that are Registrable Securities or
0.50% of the Applicable Conversion Price of such shares of Underlying Common
Stock that are Registrable Securities, as the case may be, from and after the
91st day following such registration default. In the case of Additional Interest
accruing solely as a result of a Registration Default of the type described in
Section 5(a)(iii), such Additional Interest shall be paid only to the Holders
that have delivered Notice and Questionnaires that caused the Company to incur
the obligations set forth in Section 1(d) the non-performance of which is the
basis of such Registration Default. Any Additional Interest accrued with respect
to any Note or portion thereof converted into Underlying Common Stock on a
conversion date prior to the interest payment date as set forth in Section 5(b)
below, shall, in any such event, be paid to the Holder who submitted such Note
or portion thereof for conversion on the applicable conversion date (or promptly
following the conversion date). Notwithstanding the foregoing, no Additional
Interest shall accrue as to any Registrable Security from and after the earlier
of (x) the date such security is no longer a Registrable Security and (y) the
expiration of the Effectiveness Period. The rate of accrual of the Additional
Interest with respect to any period shall not exceed 0.50% of the principal
amount of the Notes or 0.50% of the Applicable Conversion Price of such shares
of Underlying Common Stock, as the case may be, notwithstanding the occurrence
of multiple concurrent Registration Defaults. Following the cure of all
Registration Defaults requiring the payment by the Company of Additional
Interest to the Holders of Registrable Securities pursuant to this Section, the
accrual of Additional Interest will cease (without in any way limiting the
effect of any subsequent Registration Default requiring the payment of
Additional Interest by the Company). No other monetary damages shall be
available to the Holders of Registrable Securities for a Registration Default.
The Trustee shall be entitled, on behalf of Holders of Notes or
Underlying Common Stock, to seek any available remedy for the enforcement of
this Agreement, including for the payment of any Additional Interest.
-11-
All of the Company's obligations set forth in this Section 5 that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full.
The parties hereto agree that the Additional Interest provided for in
this Section 5 constitutes a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Initial Shelf Registration Statement to be filed or declared effective or
available for effecting resales of Registrable Securities in accordance with the
provisions hereof.
(b) Any amounts of Additional Interest due pursuant to Section
5(a) will be payable in cash semiannually in arrears with the first semiannual
payment due on the first August 1 or February 1 on which such Additional
Interest begins to accrue. The amount of Additional Interest will be determined
by multiplying the applicable Additional Interest Rate by the principal amount
of the Registrable Securities or the Applicable Conversion Price of the
Registrable Securities, as applicable, and further multiplied by a fraction, the
numerator of which is the number of days such Additional Interest Rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360. The
Registrable Securities entitled to payment of Additional Interest shall be
determined as of the Business Day immediately preceding the next payment date
for Additional Interest with respect to the Registrable Securities.
6. Rules 144 and 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rules 144 and 144A. The Company covenants that it will
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company will provide a copy of this Agreement to prospective
purchasers of Notes identified to the Company by the Initial Purchasers upon
request. Upon the request of any Holder of Notes, the Company shall deliver to
such Holder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 6 shall be
deemed to require the Company to register any of its securities pursuant to the
Exchange Act.
7. Underwritten Registrations. If any of the Registrable
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Registrable
Securities to be included in such offering (provided that Holders of Common
Stock issued upon conversion of the Notes shall not be deemed holders of Common
Stock, but shall be deemed to be holders of the aggregate principal amount of
Notes from which such Common Stock was converted), provided, however, that such
Managing Underwriters will be reasonably acceptable to the Company.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Registrable Securities on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 1 and 2 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 1 and
2 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
-12-
(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof and will not enter
into any agreement granting the holders of Common Stock rights to participate in
the Initial Shelf Registration Statement or the Shelf Registration Statement.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company and the
written consent of the Holders of a majority in principal amount of the
Registrable Securities affected by such amendment, modification, supplement,
waiver or consents (provided that Holders of Common Stock issued upon conversion
of Notes shall not be deemed holders of Common Stock, but shall be deemed to be
holders of the aggregate principal amount of Notes from which such Common Stock
was converted). Without the consent of the Holder of each Registrable Security,
however, no modification may change the provisions relating to the payment of
Additional Interest.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier that guarantees overnight delivery:
(1) if to a Holder of the Registrable Securities, at the most
current address given by such Holder to the Company.
(2) if to the Initial Purchasers:
Credit Suisse First Boston LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Transactions Advisory Group
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(3) if to the Company, at its address as follows:
Flextronics International Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
Fenwick & West LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
-13-
(e) Third-Party Beneficiaries. The Holders shall be third-party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (other than subsequent Holders of Registrable Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
-14-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Initial Purchasers a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Initial Purchasers and the Company in accordance
with its terms.
Very truly yours,
FLEXTRONICS INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
Title: Company Secretary
-15-
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
BANC OF AMERICA SECURITIES LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
ABN AMRO ROTHSCHILD LLC
FLEET SECURITIES, INC.
BNP PARIBAS SECURITIES CORP.
RBC DOMINION SECURITIES CORPORATION
SCOTIA CAPITAL (USA) INC.
BY: CREDIT SUISSE FIRST BOSTON LLC,
By: /s/ ▇▇▇▇▇ ▇▇▇▇
________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
