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EXHIBIT 2.1
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of December 28, 1998 by and among Sanmina
Corporation, a Delaware corporation (the "Company") and each of the individual
signatories hereto (individually, a "Holder").
AGREEMENT
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the United States Securities and Exchange
Commission or any other Federal agency at the time administering the Securities
Act of 1933, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Registrable Securities" means any Common Stock of the Company issued
to Holder in connection with the Agreement and Plan of Merger dated as of
December 28, 1998 by and among the Company, SANM Acquisition Subsidiary, Inc.
and Telo Electronics, Inc. and owned by the Holder.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Section 1 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such registration, including legal fees and expenses of
one counsel to Holder (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
"Securities Act" shall mean the United States Securities Act of 1933,
as amended, or any similar Federal Statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean selling commissions and stock transfer
taxes applicable to the securities registered by the Holder.
1.1 Registration on Form S-3. Parent shall prepare and file within 30
days after the Effective Time (as defined in that certain Agreement of Plan of
Merger dated as of December 28, 1998) a registration statement on Form S-3 under
the Securities Act covering up to 500,000 shares of Parent Common Stock issued
pursuant to the Merger and held by signatory(ies) to the Registration Rights
Agreement as of the filing date.
1.2 Expenses of Registration. The Company shall bear all Registration
Expenses in connection with the registration exclusive of any Selling Expenses.
All Selling Expenses relating to securities registered on behalf of the Holder
shall be borne by the Holder; provided, however, that the Company shall not be
required to pay for any expenses of a registration proceeding if the
registration request is subsequently withdrawn at the request of the Holder (in
which case the Holder shall bear such expenses) unless the
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withdrawal is based upon material adverse information concerning the Company of
which Holder was not aware at the time of the registration.
1.3 Registration Procedures. In the case of the registration,
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep the Holder advised in writing as to the initiation of the
registration, qualification and compliance and as to the completion thereof. At
its expense the Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for two years or less (but
not less than one year) if the distribution described in the Registration
Statement has been completed;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holder such reasonable number of copies of
the registration statement, preliminary prospectus, final prospectus and such
other documents as Holder may reasonably request in order to facilitate the
public offering of such securities.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holder,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) Notify the Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(f) Furnish, at the request of the Holder on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably satisfactory to
the Holder, addressed to the Holder and (ii) a letter dated as of such date,
from the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in connection with an underwritten public offering and reasonably
satisfactory to the Holder, addressed to the Holder.
1.4 Temporary Cessation of Offers and Sales. The Holder acknowledges
that there may occasionally be times when the Company may be required to suspend
the use of the prospectus forming part of the registration statement until such
time as an amendment to the registration statement has been filed by the Company
and declared effective by the Commission, until the prospectus is supplemented
or amended to comply with the Securities Act, or until such time as the Company
has filed an appropriate report with the Commission pursuant to the Exchange
Act. The Holder hereby covenants that it will not sell any Registrable
Securities pursuant to said prospectus during the period commencing at the time
at which the Company gives the Holder notice of the suspension of the use of
said prospectus and ending at the time the Company gives the Holder notice that
the Holder may thereafter effect sales pursuant to said prospectus, as the same
may have been supplemented or amended. In the event of any suspension of use of
a registration statement
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pursuant to this paragraph, the time period during which the Company is
obligated to maintain the effectiveness of such registration statement pursuant
to this Agreement shall be tolled for the duration of the period during which
use of the registration statement was suspended.
1.5 Indemnification.
(a) The Company will indemnify each Holder, within the meaning
of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1.3,
against all expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Company of the Securities Act or any
rule or regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification or compliance,
and the Company will reimburse each Holder, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by the Holder specifically for use therein, or the failure of the
Holder to deliver a prospectus that was delivered to the Holder prior to a sale
or sales by such Holder.
(b) The Holder will, if Registrable Securities held by the
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each person who controls the Company within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or 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, and will reimburse the Company, such directors, officers, persons,
or control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein. Notwithstanding the foregoing, the liability of
the Holder under this subsection (b) shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such Holder under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by such
Holder from the sale of Registrable Securities covered by such registration
statement. The Holder will not be required to enter into any agreement or
undertaking in connection with any registration under this Section 1 providing
for any indemnification or contribution on the part of such Holder greater than
the Holder's obligations under this Section 1.5(b).
(c) Each party entitled to indemnification under this Section
1.5 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such
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claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 1 unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which the Indemnified Party in good faith
concludes there is an actual or potential conflict of interest or separate and
different defenses but shall bear the expense of such defense nevertheless. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for paragraphs (a) through
(c) of this Section 1.5 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the Holder of such Registrable Securities, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or actions as well as any other relevant equitable considerations,
including the failure to give any notice under paragraph (c). The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact relates to information supplied by
the Company, on the one hand, or the Holder, on the other, and to the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Holder agree that it
would not be just and equitable if contributions pursuant to this paragraph were
determined by pro rata allocation or by any other method of allocation which did
not take account of the equitable considerations referred to above in this
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or action in respect thereof, referred to
above in this paragraph, 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
paragraph, the Holder shall not be required to contribute any amount in excess
of the amount of any damages which they would have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission. No person
guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of
the Securities Act), shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation.
1.6 Information by Holder. The Holder of Registrable Securities
included in any registration shall furnish to the Company such information
regarding the Holder, and the Registrable Securities held by him as the Company
may reasonably request in writing and as shall be required in connection with
any registration, qualification or compliance referred to in this Section 1.
1.7 Termination of Registration Rights. The rights granted under
Section 1 of this Agreement shall terminate on the first anniversary of the
effective date of this Agreement unless the time period during which the Company
is required to maintain the effectiveness of a registration statement under this
Agreement shall be tolled in accordance with the provision herein, in which case
such termination date shall be extended for a time period identical to such
tolled period. Notwithstanding the foregoing, the rights of Holder under Section
1 shall terminate if Holder (together with his affiliates) holds less than 1% of
the Company's outstanding Common Stock and all Registrable Securities held by
and issuable to Holder (and his affiliates) may be sold under Rule 144 or Rule
145 during any ninety (90) day period.
1.8 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned by Holder to a transferee or assignee of
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Registrable Securities which is a family member of Holder or trust for the
benefit of Holder; provided, however, (A) the transferor shall, within ten (10)
days after such transfer, furnish to the Company written notice of the name and
address of such transferee or assignee and the securities with respect to which
such registration rights are being assigned and (B) such transferee shall agree
to be subject to all restrictions set forth in this Agreement.
1.9 SEC Reporting. With a view to making available to the Holder the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public without registration, the Company
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(c) So long as the Holder owns any Registrable securities,
furnish to Holder forth with upon request: a written statement by the Company as
to its compliance with the reporting requirements of said Rule 144 of the
Securities Act, and of the Exchange Act (at any time after it has become subject
to such reporting requirements); a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
1.10 Effective Time. This Agreement shall become effective upon the
closing of the merger as described in the Agreement and Plan of Merger dated as
of December 28, 1998 by and among the Company, Acquisition Sub, Inc. and Telo
Electronics Incorporated. In the event such agreement is terminated prior to
consummation of the Merger, this Agreement shall terminate and be of no further
force or effect concurrent with such termination.
2. Miscellaneous.
2.1 Governing Law. This Agreement shall be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
2.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
2.3 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.4 Notices. All notices and other communications required or
permitted hereunder shall be effective upon receipt and shall be in writing and
may be delivered in person, by telecopy, electronic mail, overnight delivery
service or U.S. mail, in which event it may be mailed by first-class, certified
or registered, postage prepaid, addressed (a) if to Holder, at such address as
Holder shall have furnished the Company in writing, or, until any such Holder so
furnishes an address to the Company, then to and at the address of the last
Holder of such securities who has so furnished an address to the Company, or (b)
if to the Company, at its address set forth on the signature page of this
Agreement, or at such other address as the Company shall have furnished to
Holder. Notwithstanding the foregoing, all notices and communications to
addresses outside the United States shall be given by telecopier and confirmed
in writing sent by overnight or two-day courier service.
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2.5 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
2.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.7 Facsimile. Facsimile signatures shall constitute original
signatures for purposes of this Agreement.
[Remainder of page intentionally left blank.]
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The foregoing Registration Rights Agreement is hereby executed as of the
date first above written.
"COMPANY"
SANMINA CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
"HOLDER"
By: /s/ S. Xxxxx Xxxxx
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S. Xxxxx Xxxxx
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