Exhibit 99.1
October 10, 1997
Elexsys International, Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to that certain Agreement and Plan of Merger dated as
of July 22, 1997 (the "Merger Agreement"), among Sanmina Corporation
("Sanmina"), SANM Acquisition Subsidiary, Inc. ("Sub") and Elexsys
International, Inc. ("Elexsys"). Capitalized terms used and not otherwise
defined in this letter agreement shall have the respective meanings ascribed to
them in the Merger Agreement. For good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
1. Each of Sanmina and Sub hereby irrevocably and unconditionally: (a)
waives all conditions set forth in Article VI of the Merger Agreement and waives
and relinquishes any right to assert that any of such conditions has not been
satisfied; (b) waives and relinquishes any right to terminate the Merger
Agreement (pursuant to the terms of the Merger Agreement or otherwise) or to
refuse to consummate the Merger; and (c) waives and relinquishes any right to
claim that any of the representations or warranties made by Elexsys in the
Merger Agreement, or (except as provided below) any of the covenants or
obligations of Elexsys under the Merger Agreement, has been breached or
otherwise has not performed or complied with; provided, however, that nothing
contained in this paragraph 1 shall constitute a waiver by Sanmina of the
condition set forth in Section 6.1(a) of the Merger Agreement. Without limiting
the generality of the foregoing, subject to the approval and adoption of the
Merger Agreement by the affirmative vote of the holders of a majority of the
shares of Elexsys Common Stock outstanding as of the record date for the
Stockholders Meeting, and subject to paragraph 2 hereof, Sanmina hereby agrees
that the Closing shall take place at 10:00 a.m. on November 6, 1997. Nothing in
this paragraph 1 shall be deemed to constitute a waiver by Sanmina of the
covenants and obligations of Elexsys set forth in Sections 4.2, 5.6 and 5.8 of
the Merger Agreement; provided, however, that nothing in this sentence shall
affect the waiver by Sanmina of the condition set forth in Section 6.2(b) of the
Merger Agreement or any other condition set forth in the Merger Agreement. In
addition, Elexsys agrees to continue to provide reasonable cooperation to
Sanmina, Deloitte & Touche LLP and Xxxxxx Xxxxxxxx LLP in connection with their
analysis as to whether any conditions exist that would preclude Sanmina from
accounting for the Merger as a pooling of interests transaction under Opinion 16
of the Accounting Principles Board and applicable Securities and Exchange
Commission rules and regulations.
1.
2. Nothing contained in this letter agreement shall be deemed to
constitute a waiver by Elexsys of any rights or remedies that may be available
to Elexsys under Article VI of the Merger Agreement, under Article VII of the
Merger Agreement, under any other provision of the Merger Agreement or
otherwise.
3. Without limiting any rights of any Person under Section 5.7 of the
Merger Agreement, Sanmina shall hold harmless and indemnify each of the
Indemnitees from and against, and shall compensate and reimburse each of the
Indemnitees for, any Damages which are directly or indirectly suffered or
incurred by any of the Indemnitees or to which any of the Indemnitees may
otherwise become subject at any time (regardless of whether or not such Damages
relate to any third-party claim and regardless of whether such Damages were
caused, in whole or in part, by the negligence or gross negligence of any
Indemnitee) and which arise directly or indirectly from or as a direct or
indirect result of, or are directly or indirectly connected with, any action
taken or alleged to have been taken by or on behalf of, or any failure to act or
alleged failure to act on the part of or with respect to, Elexsys or any
subsidiary of Elexsys during the period commencing on October 2, 1997 and ending
on the earlier of the termination of the Merger Agreement by Elexsys or the
Effective Time. For purposes of this paragraph 3 and the other provisions of
this letter agreement:
(a) "Indemnitees" shall mean the following Persons: (i)
Elexsys; (ii) Elexsys' current and future affiliates;
(iii) the respective directors, officers and advisers
of the Persons referred to in clauses "(i)" and
"(ii)" of this sentence; and (iv) the respective
heirs, successors and assigns of the Persons referred
to in clauses "(i)", "(ii)" and "(iii)" of this
sentence.
(b) "Damages" shall include any loss, damage, injury,
decline in value, lost opportunity, liability, claim,
demand, settlement, judgment, award, fine, penalty,
tax, fee (including any legal fee, expert fee,
accounting fee or advisory fee), charge, cost
(including any cost of investigation) or expense of
any nature.
(c) "Person" shall mean any individual or corporation,
partnership, joint venture, association, trust,
unincorporated organization or other entity.
4. If any legal action or other legal proceeding relating to this
letter agreement or the enforcement of any provision of this letter agreement is
brought against any party hereto, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
5. No failure on the part of any Person to exercise any power, right,
privilege or remedy under this letter agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this letter
agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. No Person shall be deemed to have waived any claim
arising out
2.
of this letter agreement, or any power, right, privilege or remedy under this
letter agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Person; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
6. In the event that any provision of this letter agreement, or the
application of any such provision to any Person or set of circumstances, shall
be determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this letter agreement, and the application of such provision to
Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
7. Paragraphs 3, 4, 5, 6 and 7 hereof shall survive any termination of
the Merger Agreement by Elexsys and the consummation of the Merger. This letter
agreement is intended to benefit, and may be enforced by, each of the
Indemnitees, and will be binding upon all successors and assigns of Sanmina and
Sub.
Sincerely,
SANMINA CORPORATION
By: /s/ Xxxx Xxxx
-----------------------------------
Xxxx Xxxx
Chief Executive Officer
SANM ACQUISITION SUBSIDIARY, INC.
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
Chief Executive Officer
AGREED TO BY:
ELEXSYS INTERNATIONAL, INC.
By: /s/ W.F. "Xxxxx" Xxxxxxx
-------------------------
W.F. "Xxxxx" Xxxxxxx
President
3.
