Exhibit 2.7
SECURITIES PURCHASE AGREEMENT
AGREEMENT dated as of September 1, 1995 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 (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) except as contemplated by the Stockholders Agreement dated as of January
20, 1995 by and among the DLJ Buyers, certain trusts and individuals and the
Issuer.
3.5 FINDERS' FEES. Except for Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, whose fee in respect of services on behalf of the Issuer and the
Subsidiaries will be paid by the Issuer, 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:
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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.
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 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.
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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.
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:
Title:
DLJ INTERNATIONAL PARTNERS, C.V.
By DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: _______________________________
Name:
Title:
DLJ OFFSHORE PARTNERS, C.V.
By DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: _______________________________
Name:
Title:
DLJ MERCHANT BANKING FUNDING, INC.
By: _______________________________
Name:
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 14,118,724 $14,118,724
Partners, L.P.
DLJ International 6,324,022 $ 6,324,022
Partners, C.V.
DLJ Offshore Partners, 366,665 $ 366,665
C.V.
DLJ Merchant Banking 9,190,589 $ 9,190,589
Funding, Inc.
