Exhibit 2.8
SECURITIES PURCHASE AGREEMENT
AGREEMENT dated as of June 11, 1997 by and among DLJ Merchant Banking
Partners, L.P., a Delaware limited partnership, DLJ International Partners,
C.V., a Netherlands Antilles limited partnership, DLJ Offshore Partners, C.V., a
Netherlands Antilles limited partnership, DLJ Merchant Banking Funding, Inc., a
Delaware corporation, DLJ First ESC LLC, a Delaware limited liability company
(each of the foregoing, a "DLJ BUYER," and collectively, the "DLJ BUYERS") and
Manufacturers' Services Limited, a Delaware corporation (the "ISSUER").
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person; PROVIDED that no securityholder of the Issuer shall be deemed an
Affiliate of any other securityholder of the Issuer or any Subsidiary solely by
reason of any investment in the Issuer. For the purpose of this definition, the
term "CONTROL" (including with correlative meanings, the terms "CONTROLLING,"
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"COMMON STOCK" means the common stock, one-tenth of $.01 par value per
share, of the Issuer.
"LIEN" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or other adverse claim of
any kind in respect of such property or asset. For the purposes of this
Agreement, a Person shall be deemed to own subject to a Lien any property or
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such property or asset.
"1933 ACT" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"PURCHASE PRICE" has the meaning set forth in Section 2.1.
"SECURITIES" means the shares of Common Stock to be acquired pursuant
to Article 2 of this Agreement.
"SUBSIDIARY" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions (including, in the case
of a partnership, a general partner) are at the time directly or indirectly
owned by the Issuer.
ARTICLE 2
PURCHASE AND SALE
2.1 PURCHASE AND SALE. Upon the basis of the representations and
warranties and agreements contained herein, the Issuer agrees to issue and sell
to each DLJ Buyer and each DLJ Buyer agrees, severally and not jointly, to
purchase from the Issuer those Securities as are set forth opposite such DLJ
Buyer's name on Schedule 2.1(a). The purchase price to be paid in cash by each
DLJ Buyer for the Securities to be purchased by it (the "PURCHASE PRICE") is set
forth opposite such DLJ Buyer's name on Schedule 2.1(a). The purchase price to
be paid by each DLJ Buyer shall be paid in accordance with instructions given to
such DLJ Buyer by the Issuer.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
The Issuer represents and warrants to each DLJ Buyer as of the date
hereof that:
3.1 CORPORATE AUTHORIZATION. The execution, delivery and
performance by the Issuer of this Agreement are within the Issuer's corporate
powers and have been duly authorized by all necessary corporate action on the
part of the Issuer. This Agreement constitutes a valid and binding agreement of
the Issuer.
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3.2 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by the Issuer of this Agreement require no action by or in respect
of, or filing with, any governmental body, agency or official.
3.3 NON-CONTRAVENTION. The execution, delivery and performance by
the Issuer of this Agreement do not and will not (i) violate the certificate of
incorporation or bylaws of the Issuer or any Subsidiary, (ii) violate any
applicable material law, rule, regulation, judgment, injunction, order or
decree, (iii) require any consent or other action by any Person, constitute a
default, give rise to any right of termination, cancellation or acceleration of
any right or obligation of the Issuer or any Subsidiary or result in the loss of
any benefit to which the Issuer or any Subsidiary is entitled under any
agreement or other instrument binding upon the Issuer or any Subsidiary or
result in the loss of any license, franchise, permit or other similar
authorization held by the Issuer or any Subsidiary or (iv) result in the
creation or imposition of any Lien on any asset of the Issuer or any Subsidiary.
3.4 CAPITALIZATION. The Securities have been duly authorized by
the Issuer and, when issued and delivered in accordance with the terms of this
Agreement, upon payment therefor by the DLJ Buyers, will be validly issued,
fully paid and non-assessable, and will be free and clear of any Lien or other
right or claim (except any created by or through the DLJ Buyers) and will not be
subject to any preemptive or other similar rights (except any created by or
through the DLJ Buyers).
3.5 FINDERS' FEES. There is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of the Issuer or any Subsidiary who might be entitled to any fee or
commission in connection with the purchase of the Securities.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE DLJ BUYERS
Each DLJ Buyer, severally as to itself and not jointly, represents and
warrants to the Issuer as follows:
4.1 CORPORATE AUTHORIZATION. The execution, delivery and
performance by such DLJ Buyer of this Agreement are within the powers
(corporate, partnership or otherwise) of such DLJ Buyer and have been duly
authorized by all necessary action on the part of such DLJ Buyer. This Agreement
constitutes a valid and binding agreement of such DLJ Buyer.
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4.2 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by such DLJ Buyer of this Agreement require no action by or in
respect of, or filing with, any governmental body, agency or official.
4.3 NON-CONTRAVENTION. The execution, delivery and performance by
such DLJ Buyer of this Agreement do not and will not (i) violate the partnership
agreement, limited liability company agreement or articles of incorporation and
bylaws, as the case may be, of such DLJ Buyer, (ii) violate any material
indenture, agreement or mortgage to which such DLJ Buyer is a party or by which
such DLJ Buyer is bound or (iii) violate any applicable material law, rule,
regulation, judgment, injunction, order or decree or require any material
consent of any other Person.
4.4 PURCHASE FOR INVESTMENT. Such DLJ Buyer acknowledges that the
Securities have not been registered under the 1933 Act or any state securities
laws and that the purchase and sale of the Securities contemplated hereby is to
be effected pursuant to an exemption from the registration requirements imposed
by such laws. In this regard, such DLJ Buyer is purchasing the Securities to be
purchased by it hereunder for its own account and not with a view to, or for
sale in connection with, any distribution thereof in violation of the 1933 Act.
Such DLJ Buyer (either alone or together with its advisors) is an "ACCREDITED
INVESTOR" (as defined in Regulation D under the 1933 Act), has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in such Securities and is
capable of bearing the economic risks of such investment.
4.5 PRIVATE PLACEMENT. Such DLJ Buyer (i) was not formed for the
specific purpose of acquiring the Securities and (ii) understands that there is
no existing public or other market for the Securities and that there can be no
assurance that such DLJ Buyer will be able to sell or dispose of such DLJ
Buyer's Securities.
ARTICLE 5
MISCELLANEOUS
5.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding among the parties hereto and supersedes all prior
agreements and understandings, both oral and written, among the parties relating
to the subject matter of this Agreement.
5.2 AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by all parties hereto.
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5.3 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
5.4 SURVIVAL. The representations and warranties herein shall
survive beyond the date hereof.
5.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard to
the conflicts of law rules of such state.
5.6 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the day and year
first above written.
DLJ MERCHANT BANKING PARTNERS, L.P.
By DLJ MERCHANT BANKING, INC.
Managing General Partner
By: _______________________________
Name: Xxx Xxxxx
Title:
DLJ INTERNATIONAL PARTNERS, C.V.
By DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: _______________________________
Name: Xxx Xxxxx
Title:
DLJ OFFSHORE PARTNERS, C.V.
By DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: _______________________________
Name: Xxx Xxxxx
Title:
DLJ MERCHANT BANKING FUNDING, INC.
By: _______________________________
Name: Xxx Xxxxx
Title:
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DLJ FIRST ESC LLC
By DLJ LBO PLANS MANAGEMENT
CORPORATION
By: _______________________________
Name: Xxx Xxxxx
Title:
MANUFACTURERS' SERVICES LIMITED
By: _______________________________
Name: Xxxxx X. Xxxxx
Title: Chairman and
Chief Executive Officer
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SCHEDULE 2.1(a)
SECURITIES TO BE PURCHASED FROM THE ISSUER
AGGREGATE
BUYER SECURITIES PURCHASE PRICE
----- ---------- --------------
DLJ Merchant Banking 9,803,384* $ 11,764,060.80
Partners, L.P.
DLJ International 4,392,194* $ 5,270,632.80
Partners, C.V.
DLJ Offshore Partners, 254,658 $ 305,589.60
C.V.
DLJ Merchant Banking 3,829,859* $ 4,595,830.80
Funding, Inc.
DLJ First ESC LLC 2,553,239 $ 3,063,886.80
* Pursuant to the amendment to the Issuer's Certificate of Incorporation,
these shares of Common Stock will be non-voting until such time as such
entity has, if applicable, complied with the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, with respect to the acquisition of
such shares as voting securities.