EXHIBIT 1.1
SOLECTRON CORPORATION
7.25% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
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UNDERWRITING AGREEMENT
December 20, 2001
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Bank of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Solectron Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
40,000,000 7.25% Adjustable Conversion-Rate Equity Security Units (the "Firm
Securities") and, at the election of the Underwriters, up to 4,000,000
additional Adjustable Conversion-Rate Equity Security Units (the "Optional
Securities") (the Firm Securities and the Optional Securities that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively
called the "Securities" or the "Equity Units"). Each Equity Unit will have a
stated amount of $25 and will initially be comprised of (a) a purchase contract
(a "Purchase Contract") under which the holder will purchase from the Company on
November 16, 2004 a number of shares (the "Issuable Common Stock") of common
stock, par value $0.01 per share, of the Company (the "Common Stock") equal to
the Settlement Rate as set forth in the Purchase Contract Agreement (each as
defined below) and (b) beneficial ownership of a 7.25% Debenture due November
16, 2006 (the "Debentures") of the Company, having a principal amount of $25.
In accordance with the terms of the Purchase Contract Agreement to be
dated as of December 27, 2001 (the "Purchase Contract Agreement"), between the
Company and State Street Bank and Trust Company of California, N.A., as Purchase
Contract Agent (the "Purchase Contract Agent"), the Debentures constituting a
part of the Equity Units will be pledged by the Purchase Contract Agent, on
behalf of the holders of the Equity Units, to U.S. Bank N.A., as collateral
agent (the "Collateral Agent") for the benefit of the Company, pursuant to the
Pledge Agreement, to be dated as of December 27, 2001 (the "Pledge Agreement"),
among the Company, the Purchase Contract Agent, the Collateral Agent and U.S.
Bank N.A., as custodial agent (the "Custodial Agent") and securities
intermediary (the "Securities Intermediary"), to secure the holders' obligation
to purchase the Issuable Common Stock under the Purchase Contracts. The rights
and obligations of a holder of Securities in respect of Debentures (subject to
the pledge thereof) and
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Purchase Contracts will initially be evidenced by a Normal Units Certificate (as
defined in the Purchase Contract Agreement).
The Debentures will be issued pursuant to an Indenture, to be dated as
of December 27, 2001 (the "Base Indenture"), between the Company and State
Street Bank and Trust Company of California, N.A., as Trustee (the "Trustee"),
as supplemented by the First Supplemental Indenture, to be dated as of December
27, 2001 (the "First Supplemental Indenture," and, together with the Base
Indenture, the "Indenture"), between the Company and the Trustee. Pursuant to
the terms of the Pledge Agreement, dated as of December 27, 2001 (the "Interest
Pledge Agreement"), among the Company, the Trustee and State Street Bank and
Trust Company of California, N.A., as pledge trustee ("Pledge Trustee"), the
Pledge Trustee will hold certain U.S. Treasuries in a secured account to secure
the payment of the Debentures.
Pursuant to a Remarketing Agreement (the "Remarketing Agreement")
described in the Prospectus (as defined in Section 1(a)) and to be entered into
among the Company, the Purchase Contract Agent and a financial institution to be
selected by the Company to act each as the reset agent and a remarketing agent
(together the "Remarketing Agent"), the Debentures or other Pledged Securities
(as defined below) will be remarketed, subject to certain terms and conditions.
As used in this Agreement, "Transaction Documents" shall mean,
collectively, the Purchase Contract Agreement, the Indenture, the Remarketing
Agreement, the Pledge Agreement, the Control Agreement and the Interest Pledge
Agreement.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters as of the date hereof that:
(a) A registration statement on Form S-3 (File No. 333-64454-01)
and amendments thereto filed prior to the date hereof (collectively, the
"Initial Registration Statement") in respect of the Securities and the
Issuable Common Stock has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement and
any post-effective amendment thereto prior to the date hereof, excluding
exhibits to the Initial Registration Statement, but including all
documents incorporated by reference in the prospectus contained therein
as of the date hereof, each in the form heretofore delivered to you for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no
other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than filings by the
Company under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act,
each in the form heretofore delivered to you); and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration
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Statement or filed with the Commission pursuant to Rule 424(a) under the
Act is hereinafter called a "Preliminary Prospectus"; the various parts
of the Initial Registration Statement, any post-effective amendment
thereto and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective, but
excluding Form T-1, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "Registration Statement"; the
prospectus relating to the offer and sale of the Securities and the
Issuable Common Stock, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to the
date of this Agreement, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents
filed under the Exchange Act after the date of such Preliminary
Prospectus or Prospectus, as the case may be, and on or prior to the
date hereof or a Time of Delivery, as applicable, and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment to the Initial Registration Statement
shall be deemed to refer to and include any annual report of the Company
filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is
incorporated by reference in the Registration statement and on or prior
to the date hereof or a Time of Delivery, as applicable; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to the
Securities and the Issuable Common Stock in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof including any documents incorporated
by reference therein as of the date of such filing);
(b) No order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus has been issued by the Commission, and each
Preliminary Prospectus and Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for
use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, on or prior to the date hereof or a Time of Delivery, as
applicable, complied and will comply in all material respects with the
requirements of the Act or the
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Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and when read together with the other information
in the Prospectus none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements in the Prospectus, in
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(d) The Registration Statement complies, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will on and prior to the date hereof and each Time of
Delivery, as applicable, comply, in all material respects with the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, in any case on and prior to the
date hereof and each Time of Delivery, as applicable, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(e) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (b) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those arising in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as
one enterprise, and (c) except for dividends on the Company's preferred
stock that may be outstanding from time to time, in amounts per share
that are consistent with the applicable charter document or supplement
thereto, respectively, no dividend or distribution of any kind has been
declared, paid or made by the company on any class of its capital stock;
(f) The Company and its subsidiaries (i) have good and
marketable title to all real property owned by them and (ii) hold all
personal property owned by them, in each case free and clear of all
adverse claims, liens, encumbrances and defects except such as are
described in the Prospectus or such as would not result, singly or in
the aggregate, in a Material Adverse Effect; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, are held by them under valid, subsisting
and enforceable leases with such exceptions as do not interfere with the
use made and proposed to be made of such property and buildings by the
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Company and its subsidiaries, except as would not, singly or in the
aggregate, result in a Material Adverse Effect;
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Agreement and the Transaction Documents. The
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect.
(h) Each subsidiary of the Company has been duly organized and
is validly existing as an entity in good standing under the laws of the
jurisdiction of its organization, has the power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
organization to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect. The Company does not have any
"significant subsidiaries" (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the Act) other than those listed on
Schedule II hereto. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital
stock of each significant subsidiary has been duly authorized and is
validly issued, fully paid and non-assessable and is owned by the
Company (except for directors qualifying shares), directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity. None of the outstanding shares of
capital stock of any significant subsidiary were issued in violation of
preemptive or other similar rights of any securityholder of such
subsidiary.
(i) The Company has the capitalization set forth in the
Prospectus under the heading "Capitalization," and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable; the shares
of Issuable Common Stock have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance with
the provisions of the Transaction Documents, will be duly and validly
issued, fully paid and non-assessable and will conform in all material
respects to the description of the Common Stock contained in the
Prospectus and the issuance of Issuable Common Stock will not be subject
to any preemptive or other similar right;
(j) The Pledge Agreement will create, as collateral security for
the performance when due by the holders from time to time of the
Securities of their respective obligations under the Purchase Contracts,
a valid security interest (as defined in the Uniform Commercial Code, as
adopted and in effect in the State of New York (the "New York UCC")) in
favor of the Collateral Agent for the benefit of the Company, in the
right, title and interest of such holders in the securities and
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other assets and interests pledged to the Collateral Agent pursuant to
the Pledge Agreement (the "Pledged Securities");
(k) At each Time of Delivery, each of the Transaction Documents
will have been duly authorized and, except for the Remarketing
Agreement, executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the other, respective, parties
thereto, will, except for the Remarketing Agreement, constitute a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as to enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof may be subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law); each of the Transaction Documents conforms in all
material respects to the description thereof contained in the
Prospectus;
(l) The Securities have been duly authorized by the Company, and
when authenticated (as applicable), issued and delivered in the manner
provided in the relevant Transaction Document and delivered against
payment of the purchase price therefor as provided herein, will
constitute valid and binding obligations of the Company enforceable in
accordance with its terms; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and the Securities and the
Issuable Common Stock will conform in all material respects to the
descriptions thereof in the Prospectus;
(m) The issue and sale of the Securities, the Purchase
Contracts, the Debentures, the Issuable Common Stock and the compliance
by the Company with all of the provisions of the Securities, the
Transaction Documents, the Debentures and this Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
except as disclosed in the Prospectus and except for such conflicts,
breaches, violations or defaults that would not result in a Material
Adverse Effect, (ii) nor will such action result in any violation of (A)
the provisions of the Certificate of Incorporation or the By-laws of the
Company, or (B) any applicable statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties, except
for such violations that would not result in a Material Adverse Effect;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities, the Purchase
Contracts, the Debentures, the Issuable Common Stock or the consummation
by the Company of the transactions contemplated by this Agreement or the
Transaction Documents, except for those consents, approvals,
authorizations, orders, registrations or qualifications which have
already been obtained.
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(n) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or (ii) in default in the
performance or observance of any material obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound, except, in the
case of this clause (ii), as disclosed in the Prospectus on the date
hereof, and except for such defaults as would not result in a Material
Adverse Effect;
(o) The statements set forth in the Prospectus under the caption
"Description of the Units" insofar as they purport to constitute a
summary of the terms of the Securities and the Issuable Common Stock,
and under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(p) Although the discussion set forth in the Prospectus
Supplement under the heading "Certain United States Federal Income Tax
Consequences" does not purport to discuss all possible United States
federal income tax consequences of the purchase, ownership and
disposition of the Equity Units, such discussion constitutes, in all
material respects, a fair and accurate summary of the United States
federal income tax consequences of the purchase, ownership and
disposition of the Equity Units, based upon current United States
federal income tax law.
(q) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending, or to the knowledge of the
Company, threatened, to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect;
(r) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(s) KPMG, LLC, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
(t) The financial statements of the Company (excluding for
purposes of this clause (t), any pro forma financial information)
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein (or
incorporated by reference), present fairly the financial position of the
Company and its consolidated subsidiaries, or such other entity, as the
case may be, at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis
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throughout the periods involved except to the extent that the interim
audited financial statements are subject to normal year-end adjustments,
lack of footnotes and other presentation items. The supporting
schedules, if any, included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the
summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus.
(u) The pro forma condensed consolidated balance sheet and
condensed consolidated statements of operations, the related notes
thereto and the related pro forma supplementary information set forth
(or incorporated by reference) in the Registration Statement and the
Prospectus have been prepared in all material respects in accordance
with the applicable requirements of Rule 11-02 of Regulation S-X
promulgated under the Exchange Act, have been compiled on the pro forma
basis described therein and, in the opinion of the Company, the
assumptions used in the preparation thereof were reasonable at the time
made and the adjustments used therein are based upon good faith
estimates and assumptions believed by the Company to be reasonable at
the time made;
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(w) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and other than as
described in the Prospectus, neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would result in a Material Adverse Effect.
(x) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local
or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them except as would not, singly or in the
aggregate, have a Material Adverse Effect. The Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material
8
Adverse Effect. All of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not result in a Material Adverse Effect. Neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(y) Except as otherwise stated in the Registration Statement and
the Prospectus or as would not, singly or in the aggregate, result in a
Material Adverse Effect, (a) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (b) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (c) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries and (d) there are no
events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per Security of $24.25, the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Securities as provided below, the Company agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the same purchase price per Security
set forth in clause (a) of this Section 2, that portion of the number of
Optional Securities as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional Securities) determined by
multiplying the number of Optional Securities by a fraction, the numerator of
which is the maximum number of Optional Securities which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum number of Optional
Securities which all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 4,000,000 Optional Securities, at the purchase price set
forth in clause (a) of the first paragraph of this Section 2, for the sole
purpose of covering sales of
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Securities in excess of the aggregate number of Firm Securities. Any such
election to purchase Optional Securities may be exercised by written notice from
you to the Company, given not later than 13 calendar days after the First Time
of Delivery, setting forth the number of Optional Securities to be purchased and
the date on which such Optional Securities are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section (4) hereof) or, unless you and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus. The Underwriters agree to
pledge, through the Purchase Contract Agent, to the Collateral Agent, on behalf
of the initial purchasers of the Securities, the Debentures underlying the
Securities with respect to which the Company and the Underwriters have entered
into Purchase Contracts. Such pledge shall be effected by the delivery to the
Collateral Agent by the Underwriters of the Debentures to be pledged at the
appropriate Time of Delivery in accordance with the Pledge Agreement.
4. (a) The Securities to be purchased by each Underwriter hereunder will
be represented by one or more definitive global Securities in book-entry form
which will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the
Securities to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Company to ▇▇▇▇▇▇▇, Sachs & Co. at least forty-eight hours in advance, by
causing DTC to credit the Securities to the account of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at
DTC. The Company will cause the certificates representing the Securities to be
made available to ▇▇▇▇▇▇▇, Sachs & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Securities, 9:30 a.m.,
New York City time, on December 27, 2001 or such other time and date as ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. and the Company may agree upon in writing, and, with respect to the
Optional Securities, 9:30 a.m., New York City time, on the date specified by
▇▇▇▇▇▇▇, Sachs & Co. in the written notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the
Underwriters' election to purchase such Optional Securities, or such other time
and date as ▇▇▇▇▇▇▇, Sachs & Co. and the Company may agree upon in writing. Such
time and date for delivery of the Firm Securities is herein called the "First
Time of Delivery", such time and date for delivery of the Optional Securities,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7 hereof, will be delivered at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Closing Location"), and the Securities will be
delivered
10
at the Designated Office, all at the Time of Delivery. A meeting will be
held at the Closing Location at 5:00 p.m., Palo Alto time, on the New
York Business Day next preceding the Time of Delivery, or such earlier
time as the parties shall agree upon, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this
Section 4, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by
law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to rule 424(b) under the Act not later
than the commission's close of business on the second business day
following the date hereto or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement
to the Registration Statement or Prospectus and prior to the Time of
Delivery for the Securities which shall be reasonably disapproved by you
for such Securities promptly after reasonable notice thereof; to advise
you promptly of any such amendment or supplement after such Time of
Delivery and furnish you with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange act for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Securities, and during such same period to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities and the Issuable Common
Stock for offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities and the Issuable Common Stock, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the second
business day following the date of this Agreement and from time to time,
to furnish the
11
Underwriters with written and electronic copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection
with the offering or sale of the Securities and Issuable Common Stock
and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify you and upon your request to file
such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus in connection with sales
of any of the Securities and the Issuable Common Stock at any time nine
months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c)), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder any securities of the Company that are
substantially similar to the Securities, the Purchase Contracts, the
Debentures, or the Issuable Common Stock, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, the Securities, the Purchase Contracts,
the Debentures, or the Issuable Common Stock or any such substantially
similar securities, without the prior written consent of ▇▇▇▇▇▇▇, Sachs
& Co. The foregoing sentence shall not apply to (i) the Securities to be
sold hereunder, (ii) any shares of Common Stock issued by the Company
upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the
Prospectus, including without limitation shares issued in exchange for
the outstanding exchangeable shares of Solectron Global Services Canada
Inc. referred to in the Prospectus, (iii) the unsecured fixed rate debt
referred to in the commitment letter between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners L.P. and the Company and referred to in the Prospectus under
the caption "Other Transactions," (iv) any shares of Common Stock issued
or options to purchase Common Stock granted pursuant to employee benefit
plans of the Company in
12
the ordinary course of business consistent with past practice, (v) any
shares of Common Stock issued pursuant to any non-employee director
stock plan or dividend reinvestment plan in the ordinary course of
business consistent with past practice; (vi) any shares of Common Stock
issued pursuant to any acquisition in which the shares so issued are
subject to restrictions upon further transfer substantially similar to
those set forth in this paragraph until such time as the 90-day period
during which the Company is subject to the restrictions set forth in
this paragraph shall have terminated; (vii) discussions, negotiations or
offers, in each case which have not been publicly announced, made in
connection with a proposed acquisition transaction, be it an acquisition
by or of the Company;
(f) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of
the Registration Statement), to make available to the holders of
Securities consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail;
(g) During a period of two years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders generally,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which the Securities
or any class of securities of the Company is listed (excluding any
report or financial statement which is available publicly through the
Commission's Electronic Data Gathering and Retrieval system); and (ii)
for such time as you may continue to hold an unsold allotment of
Securities, such additional information concerning the business and
financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to
the Commission);
(h) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act;
(j) To reserve and keep available at all times, free of
preemptive rights, a sufficient number of shares of Issuable Common
Stock for the purpose
13
of enabling the Company to satisfy any obligations to issue shares of
its Issuable Common Stock pursuant to the Purchase Contracts;
(k) To use its best efforts to list, subject to notice of
issuance, the Securities and the Issuable Common Stock on the New York
Stock Exchange (the "Exchange"); and
(l) Reference is made to the caption in the Prospectus
Supplement entitled "Risks Relating to the Units - As a result of this
transaction, we will be required to obtain waivers, consents or
amendments with respect to our compliance with certain of our financial
instruments or we will be required to pre-pay those obligations." Prior
to March 2, 2002, the Company will either obtain the waivers, consents,
amendments or other accommodations referred to therein, or pre-pay the
obligations referred to therein, or any combination of the foregoing,
except to the extent that the Company's failure to do so would not cause
a Material Adverse Effect.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities, the Purchase Contracts, the
Debentures, and the Issuable Common Stock under the Act and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Indenture, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities and Issuable Common Stock; (iii) all expenses in connection
with the qualification of the Securities and Issuable Common Stock for offering
and sale under state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities and Issuable Common Stock; (vi) the cost of preparing
the Securities and Issuable Common Stock; (vii) the fees and expenses of the
Trustee, the Collateral Agent and the Remarketing Agent and any agent of the
Trustee, the Collateral Agent and the Remarketing Agent and the fees and
disbursements of counsel for the Trustee, the Collateral Agent and the
Remarketing Agent in connection with the Indenture and the Securities; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the
14
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, shall have furnished to you a written opinion or opinions
reasonably acceptable to you;
(c) Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Agreement. The Company is in good standing as a
foreign corporation duly qualified to transact business in California
and Georgia;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus Supplement under the caption "Capitalization."
The shares of Issuable Common Stock have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Ancillary Agreements (as defined
below) against payment of the purchase price therefor, will be duly and
validly issued and fully paid and non-assessable, and will conform in
all material respects to the description of the Issuable Common Stock
contained in the Prospectus;
(iii) Each of Solectron Texas, Inc. and Solectron California
Corporation (the "U.S. Significant Subsidiaries") is duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, and has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus. Solectron California Corporation is in good
standing as a foreign corporation duly qualified to transact business in
Massachusetts, and Solectron Texas, Inc. is in good standing as a
foreign corporation duly qualified to transact business in Texas. All of
the issued and outstanding capital stock of each of the U.S. Significant
Subsidiaries has been duly authorized and is validly issued, fully paid
and non-assessable and, to the knowledge of such counsel, is owned by
the
15
Company (except for directors' qualifying shares), directly or through
subsidiaries, free and clear of any adverse claim. None of the
outstanding shares of capital stock of any of the U.S. Significant
Subsidiaries was issued in violation of preemptive or other similar
rights of any securityholder of such subsidiary expressly contained in
such corporation's charter or bylaws or in any Reviewed Agreement (as
defined below);
(iv) To such counsel's knowledge and other than as set forth
in the Prospectus, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, before or brought by any court or
governmental agency or body, which such counsel believes will have a
Material Adverse Effect or materially and adversely affect the Company's
ability to consummate the transactions contemplated by this Agreement or
to perform its obligations under this Agreement;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi) The Securities are in the form contemplated by the
Ancillary Agreements (as defined below), have been duly authorized by
the Company and, assuming that the Debentures have been duly
authenticated by the Trustee in the manner described in the certificates
delivered to the Underwriters as of the date of such Time of Delivery
(which fact such counsel need not determine by an inspection of the
Debentures), have been duly executed, issued and delivered by the
Company. Assuming due payment by the Underwriters in accordance with the
terms of the Underwriting Agreement, the Securities constitute valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, and the Purchase Contracts will be entitled
to the benefits provided by the Purchase Contract Agreement and the
Debentures will be entitled to the benefits provided by the Indenture;
(vii) Each of the Purchase Contract Agreement, the Indenture,
the Pledge Agreement and the Interest Pledge Agreement (the "Ancillary
Agreements") has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding instrument, enforceable
against the Company in accordance with its terms;
(viii) To such counsel's knowledge and except as described in
the Prospectus, the issue and sale of the Securities, the Purchase
Contracts, the Debentures and the Issuable Common Stock, and the
compliance by the Company with all of the provisions of the Securities,
the Purchase Contracts, the Debentures, the Ancillary Agreements and
this Agreement, and the consummation of the transactions herein and
therein contemplated, do not conflict with, or constitute a breach of or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, any Reviewed Agreement (except as set forth in
the Prospectus, and except for such other conflicts, breaches, defaults,
liens, charges or encumbrances that would not have a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the Certificate of
16
Incorporation or Bylaws of the Company, or of any applicable U.S.
federal or California law, statute, rule, regulation, judgment, order,
writ or decree, known to such counsel to be generally applicable to the
Company in such transactions, of any U.S. federal or California
government, government instrumentality or court having jurisdiction over
the Company or any of its properties, assets or operations. For purposes
of such counsel's opinion, "Reviewed Agreements" are the agreements
specified on an exhibit to such counsel's opinion;
(ix) No filing with, or authentication, approval, consent,
license, order, registration, qualification, or decree of, any U.S.
federal, California or, under the General Corporation Law of Delaware,
Delaware Court or governmental authority or agency, is required by the
Company for the due authorization, execution or delivery by the Company
of the Ancillary Agreements or the performance by the Company of the
transactions contemplated by this Agreement or the Ancillary Agreements,
except such as have been obtained under the Act and the Trust Indenture
Act and except such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or non-U.S.
securities laws, as to which such counsel need express no opinion;
(x) The statements set forth in the Prospectus Supplement
under the caption "Description of the Units," insofar as they purport to
constitute a summary of the terms of the Securities, fairly summarize in
all material respects the matters referred to therein.
(xi) The Company is not required to register as an
"investment company," as such term is defined in the Investment Company
Act of 1940, as amended;
(xii) The documents incorporated by reference in the
Prospectus, which documents were filed by the Company with the
Commission prior to such Time of Delivery (other than the financial
statements, related schedules and other financial information derived
from accounting records, either included therein or omitted therefrom,
as to which such counsel need express no opinion), complied, when they
were filed with the Commission, as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder;
(xiii) The Registration Statement on the date it became
effective, and the Prospectus on its date and on the date of such Time
of Delivery (excluding in both the case of the Registration Statement
and in the case of the Prospectus the documents incorporated by
reference therein, the Trustee's Statement of Eligibility and
Qualification on Form T-1, and the financial statements, related
schedules and other financial information derived from accounting
records, either included therein or omitted therefrom, as to which such
counsel need express no opinion), complied as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder. To such counsel's knowledge, there are no contracts or other
documents of a character required to have been filed as an exhibit to
the Registration Statement on the date it became effective or required
to have been
17
incorporated by reference into the Prospectus on its date or on the date
of such Time of Delivery which have not been so filed or incorporated;
(xiv) Although the discussion set forth in the Prospectus
Supplement under the heading "Certain United States Federal Income Tax
Consequences" does not purport to discuss all possible United States
federal income tax consequences of the purchase, ownership and
disposition of the Securities, such discussion, subject to the
qualifications and limitations stated therein, constitutes, in all
material respects, a fair and accurate summary of the United States
federal income tax consequences of the purchase, ownership and
disposition of the Securities, based upon United States federal income
tax law in existence on the date of the Prospectus Supplement.
(xv) The provisions of the Interest Pledge Agreement are
sufficient to create a security interest in any right, title, and
interest of Company in and to the Collateral described therein to the
extent a security interest in the Collateral may be created therein
under Article 9 of the UCC.
(xvi) To the extent that the Trustee is an entitlement holder of
Collateral (as defined in the Interest Pledge Agreement) consisting of
securities entitlements in the Pledge Account (as defined in the
Interest Pledge Agreement) with the Pledge Trustee on the date of such
Time of Delivery, the security interest created by the Interest Pledge
Agreement in such Collateral is perfected.
(xvii) Such counsel shall also have furnished to you a written
statement (included in such written opinion or in a separate letter) to
the effect that: Such counsel has not verified, and is not passing upon
and does not assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
the Prospectus, except as set forth in paragraph (xiv) above. Such
counsel has acted as special counsel to the Company in connection with
the preparation of the Registration Statement and the Prospectus and has
reviewed and discussed the contents of the Registration Statement and
the Prospectus with representatives of the Company, its auditors, the
Underwriters and the Underwriters' counsel. On the basis of the
information that such counsel gained in the course of such review and
discussion, but without independent check or verification, no facts have
come to the attention of such counsel that caused such counsel to
believe that, as of its effective date, the Registration Statement
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date or the date of
such Time of Delivery, the Prospectus contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, it being understood that such counsel need not
express any opinion or make any statement as to the financial statements
and related schedules or other financial data derived from accounting
records included in or omitted from the Registration Statement or the
Prospectus or any amendment or supplement thereto or with respect to the
Statement of Eligibility and Qualification of the Trustee under the
Trust Indenture Act filed as an exhibit to the Registration Statement;
18
(xviii) For purposes of the foregoing opinion, the following
definitions of "Registration Statement" and "Prospectus" shall apply:
The registration statement on Form S-3 (Registration No. 333-64454-01)
filed by the Company pursuant to the Act with the Commission on July 2,
2001, as amended by Amendment No. 1 to such registration statement filed
August 3, 2001 and by Amendment No. 2 to such registration statement
filed August 28, 2001, and as declared effective on August 29, 2001
(such registration statement, solely as of the date it was declared
effective, excluding any subsequent amendment thereto deemed to have
occurred by virtue of the incorporation by reference therein of
information filed by the Company with the Commission subsequent to the
date of effectiveness of such registration statement, referred to as the
"Registration Statement"), and the related prospectus dated August 28,
2001, as supplemented by the prospectus supplement dated December 20,
2001 (the final prospectus, as of its date and as of the date of such
Time of Delivery, in the form filed with the Commission pursuant to Rule
424(b) of the rules and regulations under the Act, excluding any
subsequent amendment thereto deemed to have occurred by virtue of the
incorporation by reference therein of information filed by the Company
with the Commission subsequent to the date of such Time of Delivery,
referred to as the "Prospectus").
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to U.S. Bank N.A. ("U.S.
Bank"), the Collateral Agent, the Custodial Agent and Securities
Intermediary (collectively, the "Agents"), shall have furnished to you
their written opinion, dated such Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect that:
(i) The U.S. Bank is a national banking association duly
incorporated and validly existing under the laws of United States;
(ii) The execution, delivery and performance by the Custodial
Agent and the Securities Intermediary of the Pledge Agreement have each
been duly authorized by all necessary corporate action on the part of
each such Agent; the Pledge Agreement has been duly executed and
delivered by the Collateral Agent, the Custodial Agent and the
Securities Intermediary and constitutes a valid and binding obligation
of each of the Agents, enforceable against such Agents in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(iii) The execution, delivery and performance by the
Collateral Agent, the Custodial Agent and the Securities Intermediary of
the Pledge Agreement do not violate or constitute a breach of the
Articles of Incorporation or By-Laws of any of such Agents; and
(iv) No consent of any federal or state banking authority is
required for the execution, delivery or performance by the Agents of
their respective obligations under the Pledge Agreement.
(e) Counsel to State Street Bank and Trust Company of
California, N.A. ("State Street"), as Purchase Contract Agent and
Trustee, shall have
19
furnished to you their written opinion, dated such Time of Delivery, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The State Street is a national banking association duly
incorporated and validly existing under the laws of the United States;
(ii) The execution, delivery and performance by (1) the
Purchase Contract Agent of the Purchase Contract Agreement, the Pledge
Agreement and the Remarketing Agreement and (2) the Trustee of the
Indenture, and the authentication and delivery by (1) the Purchase
Contract Agent of the certificates evidencing the Units and (2) the
Trustee of the certificates evidencing the Debentures, have been duly
authorized by all necessary corporate action on the part of the Purchase
Contract Agent and the Trustee, respectively; the Pledge Agreement and
the Purchase Contract Agreement have each been duly executed and
delivered by the Purchase Contract Agent and such agreements constitute
valid and binding obligations of the Purchase Contract Agent,
enforceable against the Purchase Contract Agent in accordance with their
respective terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing; the Indenture has
been duly executed and delivered by the Trustee and constitutes a valid
and binding obligation of the Trustee, enforceable against the Trustee
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing; the certificates evidencing the Units have been duly
authenticated by the Purchase Contract Agent; and the certificates
evidencing the Debentures have been duly authenticated by the Trustee;
and
(iii) No consent of any Federal or New York state banking
authority is required for the execution, delivery or performance by (1)
the Purchase Contract Agent of its obligations under the Pledge
Agreement, the Remarketing Agreement and the Purchase Contract Agreement
or (2) the Trustee of its obligations under the Indenture.
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, KPMG LLC shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I hereto
(the executed copy of the letter delivered prior to the execution of
this Agreement is attached as Annex 1(a) hereto and a draft of the form
of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery
is attached as Annex l(b) hereto);
(g) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or
20
incorporated by reference in the Prospectus there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or any material change in the capital stock
or long-term or short-term debt of the Company and its subsidiaries
considered as one enterprise, otherwise than as set forth or
contemplated in the Prospectus, the effect of which is, in the judgment
of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being issued at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) except as disclosed in the Prospectus, no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's securities
on the New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or California State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak
or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v)
the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or
(v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being issued at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus
(j) The shares of Issuable Common Stock issuable pursuant to the
Purchase Contracts shall have been duly listed, subject to notice of
issuance, on the Exchange;
(k) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
(l) The Securities shall have been duly listed, subject to
notice of issuance, on the Exchange; and
(m) The Company shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the
21
Company of all of its obligations hereunder to be performed at or prior
to such Time of Delivery, as to the matters set forth in subsections
(a), (g) and (h) of this Section 7 and as to such other matters as you
may reasonably request.
(n) The Underwriters shall have received from each executive
officer of the Company listed on Annex II(a) a signed letter in the form
of Annex II(b) hereto.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, or any amendment or supplement thereto, or
arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) an untrue statement
or alleged untrue statement of a material fact contained in a
Preliminary Prospectus or a Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon any omission or alleged
omission to state therein a material fact necessary in order to make the
statements, in the light of the circumstances under which they were
made, not misleading; and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, or any amendment or supplement thereto, or
arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) an untrue statement
or alleged untrue statement of a material fact contained in a
Preliminary Prospectus or a Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon any omission or alleged
omission to state therein a material fact necessary in order to make the
statements, in the light of the circumstances under which they were
made, not misleading; in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written
22
information furnished to the Company by such Underwriter through
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to 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 shall not be liable
to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) 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 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the
23
Company on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus. The relative
fault 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 the Underwriters
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in 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 such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has 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 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in
your discretion arrange for you or another party or other parties to
purchase such Securities on the terms contained herein at a Time of
Delivery. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then
the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to
you to purchase such Securities on such terms. In the event that, within
the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or
the Company shall have the right to
24
postpone such Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section 9 with
like effect as if such person had originally been a party to this
Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above of this Section 9, the
aggregate number of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate number of all the Securities to be
purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the
principal amount of Securities which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above of this Section 9, the
aggregate number of Securities which remains unpurchased exceeds
one-eleventh of the aggregate number of all the Securities to be
purchased at such Time of Delivery, or if the Company shall not exercise
the right described in subsection (b) above of this Section 9 to require
non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to
the Second Time of Delivery, the obligation of the Underwriters to
purchase and of the Company to sell the Optional Securities) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the
25
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall then be under no further liability to any
Underwriter except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives, in care of ▇▇▇▇▇▇▇, Sachs
& Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Registration Department; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Underwriters imposing any limitation of any kind.
26
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and one for each of the Representatives
plus one for each counsel counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Solectron Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Accepted and Agreed to as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Banc of America Securities LLC
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
-----------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
27
SCHEDULE I
NUMBER OF OPTIONAL
NUMBER OF FIRM SECURITIES TO BE
SECURITIES TO BE PURCHASED IF MAXIMUM
UNDERWRITER PURCHASED OPTION EXERCISED
----------- ---------------- --------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. .................................... 26,800,000 2,680,000
Bank of America Securities LLC .......................... 5,600,000 560,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. ............................. 5,600,000 560,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ....................... 2,000,000 200,000
Total ...................................... 40,000,000 4,000,000
28
SCHEDULE II
SIGNIFICANT SUBSIDIARIES
Solectron California Corporation
Solectron Washington, Inc.
Solectron Texas LP
Solectron Georgia Corporation
Solectron Global Services, Inc.
Solectron Oregon Corporation
Force Computers, Inc.
Smart Modular Technology, Inc.
US Robotics Corporation
Solectron France SASU
Solectron Sweden AB
Solectron Romania SRL
Solectron Technology SDN BHD
Solectron Suzhou Ltd
Solectron Brasil Ltda
Solectron Australia Pty, Limited
PT Natsteel Electronics Indonesia
Solectron Technology Malaysia SDN BHD
Solectron Technology Singapore Pte Ltd
29
ANNEX I
[FURNISHED SEPARATELY]
30
ANNEX II(a)
LIST OF EXECUTIVE OFFICERS
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President and President of Micro Systems
Massued Behrouzi, Senior Vice President & President, Solectron North America
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President, Chief Materials Officer, Global
Manufacturing
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President and President Solectron Europe
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President & President, Solectron Latin America
▇▇▇▇▇▇▇ ▇▇▇, Executive Vice President & President, Solectron Asia
▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President & President, Global Services
▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President & President, System Solutions
Dr. ▇▇ ▇▇▇▇▇▇▇▇▇, Chairman, President & CEO, Solectron Corporation
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President & Chief Financial Officer
▇▇▇ ▇▇▇▇▇, Executive Vice President, Account Management & Marketing
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III, Senior Vice President and President Systems
Solutions
▇▇▇▇ ▇▇▇▇, Executive Vice President, & President, Chief Executive Officer,
Technology Solutions
▇▇▇▇▇ ▇▇▇▇, Executive Vice President, Corporate Development
▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President & Chief Operating Officer, Global
Manufacturing
31
ANNEX II(b)
SOLECTRON CORPORATION
LOCK-UP AGREEMENT]
[Date]
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Solectron Corporation- Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, propose to enter into an
Underwriting Agreement on behalf of the several Underwriters named in Schedule I
to such agreement (collectively, the "Underwriters"), with Solectron
Corporation, a Delaware corporation (the "Company"), providing for a public
offering of Adjustable Conversion-Rate Equity Security Units of the Company (the
"Units") pursuant to a prospectus supplement (the "Prospectus") to a shelf
Registration Statement on Form S-3.
In consideration of the agreement by the Underwriters to offer and sell
the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that, during
the period beginning from the date of the final Prospectus covering the public
offering of the Shares and continuing to and including the date 45 days after
the date of such final Prospectus, the undersigned will not offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of any shares of Common Stock of the Company, or any options
or warrants to purchase any shares of Common Stock of the Company, or any
securities convertible into, exchangeable for or that represent the right to
receive shares of Common Stock of the Company, whether now owned or hereinafter
acquired, owned directly by the undersigned (including holding as a custodian)
or with respect to which the undersigned has beneficial ownership within the
rules and regulations of the SEC (collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the Undersigned's Shares even if such Shares would be disposed of
by someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale or any purchase,
sale or grant of any right (including without limitation any put or call option)
with respect to any of the Undersigned's Shares or with respect to any security
that includes, relates to, or derives any significant part of its value from
such Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee
or donees thereof agree to be bound in writing by the restrictions set forth
herein, (ii) to any trust for the direct or indirect benefit of the undersigned
or the immediate family of the undersigned, provided that the trustee of the
trust agrees to be bound in writing by the restrictions set forth herein,
32
and provided further that any such transfer shall not involve a disposition for
value, or (iii) with the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf
of the Underwriters. For purposes of this Lock-Up Agreement, "immediate family"
shall mean any relationship by blood, marriage or adoption, not more remote than
first cousin. In addition, notwithstanding the foregoing, if the undersigned is
a corporation, the corporation may transfer the capital stock of the Company to
any wholly-owned subsidiary of such corporation; provided, however, that in any
such case, it shall be a condition to the transfer that the transferee execute
an agreement stating that the transferee is receiving and holding such capital
stock subject to the provisions of this Agreement and there shall be no further
transfer of such capital stock except in accordance with this Agreement, and
provided further that any such transfer shall not involve a disposition for
value. The undersigned now has, and, except as contemplated by clause (i), (ii),
or (iii) above, for the duration of this Lock-Up Agreement will have, good and
marketable title to the Undersigned's Shares, free and clear of all liens,
encumbrances, and claims whatsoever. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the Undersigned's Shares except in compliance
with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors, and assigns.
Very truly yours,
-------------------------------
Name:
33
