COMPANY VOTING AGREEMENT
This COMPANY VOTING AGREEMENT (this "Agreement") is entered into as of
November 22, 1999 (the "Agreement Date") by and between Flextronics
International Ltd., a Singapore company ("Parent"), and [name of stockholder]
("Stockholder").
RECITALS
A. Parent, The DII Group, Inc., a Delaware corporation (the "Company") and
Slalom Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary
of Parent ("Sub") are entering into an Agreement and Plan of Merger dated as of
November 22, 1999, as such may be hereafter amended from time to time (the
"Merger Agreement") which provides (subject to the conditions set forth therein)
for the merger of Sub with and into Company (the "Merger") with Company to
survive the Merger. Upon the effectiveness of the Merger, among other things,
the outstanding shares of Company's Common Stock will be converted into the
right to receive Ordinary Shares of Parent as more particularly set forth in the
Merger Agreement. Capitalized terms used but not otherwise defined in this
Agreement will have the same meanings ascribed to such terms in the Merger
Agreement.
B. As of the Agreement Date, Stockholder owns in the aggregate (including
shares held both beneficially and of record and other shares held either
beneficially or of record) the number of shares of Company's Common Stock set
forth below Stockholder's name on the signature page of this Agreement (all such
shares, together with any shares of Company's Common Stock or any other shares
of capital stock of Company that may hereafter be acquired by Stockholder, being
collectively referred to herein as the "Subject Shares"). If, between the
Agreement Date and the Expiration Date (as defined in Section 1.1 below), the
outstanding shares of Company's Common Stock are changed into a different number
or class of shares by reason of any stock split, stock dividend, reverse stock
split, reclassification, recapitalization or other similar transaction, then the
shares constituting the Subject Shares shall be appropriately adjusted, and
shall include any shares or other securities of Company issued on, or with
respect to, the Subject Shares in such a transaction.
C. As a condition to the willingness of Parent and Sub to enter into the
Merger Agreement, Parent and Sub have requested that Stockholder agree, and in
order to induce Parent and Sub to enter into the Merger Agreement, Stockholder
has agreed, to enter into this Agreement.
In consideration of the facts recited above, the parties to this Agreement,
intending to be legally bound by this Agreement, now hereby agree as follows:
SECTION 1. TRANSFER OF SUBJECT SHARES
1.1 No Transfer of Voting Rights.
(a) Stockholder covenants and agrees that, prior to the Expiration Date,
Stockholder will not deposit any of the Subject Shares into a voting trust or
grant a proxy or enter into an agreement of any kind with respect to any of the
Subject Shares, except for the Proxy
-2-
called for by Section 2.2 of this Agreement and except for any other proxy
granted by Stockholder to Parent.
(b) As used in this Agreement, the term "Expiration Date" shall mean the
earlier of (i) the date upon which the Merger Agreement is validly terminated in
accordance with the provisions of Article VII of the Merger Agreement or (ii)
the Effective Time of the Merger.
1.2 Compliance with Company Affiliate Agreement. If Stockholder is party to
a Company Affiliate Agreement, Stockholder will comply with the terms of such
Company Affiliate Agreement.
SECTION 2. VOTING OF SUBJECT SHARES
2.1 Agreement. Stockholder hereby agrees that, prior to the Expiration
Date, at any meeting of the stockholders of Company, however called, and in any
action taken by the written consent of stockholders of Company without a
meeting, unless otherwise directed in writing by Parent, Stockholder shall vote
the Subject Shares:
(a) in favor of the Merger, the execution and delivery by Company of the
Merger Agreement and the adoption and approval of the terms thereof and in favor
of each of the other actions and transactions contemplated by the Merger
Agreement and any action required in furtherance hereof and thereof; and
(b) in favor of the waiver (by amendment of any such agreement or
otherwise), effective as of immediately prior to the effectiveness of the
Merger, of any rights of first refusal, rights of first offer, rights of notice,
rights of co-sale, tag-along rights, information rights, registration rights,
preemptive rights, rights of redemption or repurchase, or similar rights of
Stockholder under any agreement, arrangement or understanding applicable to the
Subject Shares, to the extent that the same may apply to the Merger or any other
actions or transactions contemplated by the Merger Agreement.
Prior to the Expiration Date, Stockholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with clause "(a)" or "(b)" of this Section 2.1.
2.2 Proxy. Contemporaneously with the execution of this Agreement,
Stockholder shall deliver to Parent a proxy with respect to the Subject Shares
in the form attached hereto as Exhibit 1, which proxy shall be irrevocable to
the fullest extent permitted by applicable law (the "Proxy").
2.3 No Limitations as Director. Nothing contained in this Agreement shall
be deemed to apply to, or to limit in any manner, the obligations of Stockholder
under his fiduciary duties as a director of Company.
-2-
SECTION 3. WAIVERS
3.1 Appraisal Rights. Stockholder hereby agrees not to exercise any rights
of appraisal and any dissenters' rights that Stockholder may have (whether under
applicable law or otherwise) or could potentially have or acquire in connection
with the Merger.
3.2 Other Rights. Stockholder hereby waives any rights of first refusal,
rights of first offer, rights to notice, rights of co-sale, tag-along rights,
information rights, registration rights, preemptive rights, rights of redemption
or repurchase, and similar rights of Stockholder under any agreement,
arrangement of understanding applicable to the Subject Shares, in each case as
the same may apply to the execution and delivery of the Merger Agreement and the
consummation of the Merger and the other actions and transactions contemplated
by the Merger Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
4.1 Due Authorization, etc. Stockholder has all requisite power and
capacity to execute and deliver this Agreement and to perform Stockholder's
obligations hereunder. This Agreement has been duly executed and delivered by
Stockholder and constitutes a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to (a) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (b) rules of law governing specific performance,
injunctive relief and other equitable remedies.
4.2 No Conflicts, Required Filings and Consents.
(a) The execution and delivery of this Agreement by Stockholder do not, and
the performance of this Agreement by Stockholder will not: (i) conflict with or
violate any order, decree or judgment applicable to Stockholder or by which
Stockholder or any of Stockholder's properties or Subject Shares is bound or
affected; or (ii) result in any breach of or constitute a default (with notice
or lapse of time, or both) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any
lien, restriction, adverse claim, option on, right to acquire, or any
encumbrance or security interest in or to, any of the Subject Shares pursuant
to, any written, oral or other agreement, contract or legally binding commitment
to which Stockholder is a party or by which Stockholder or any of Stockholder's
properties (including but not limited to the Subject Shares) is bound or
affected.
(b) The execution and delivery of this Agreement by Stockholder do not, and
the performance of this Agreement by Stockholder will not, require any written,
oral or other agreement, contract or legally binding commitment of any third
party.
4.3 Title to Subject Shares. As of the Agreement Date, Stockholder
beneficially or of record owns the Subject Shares set forth under Stockholder's
name on the signature page hereof and does not directly or indirectly own,
either beneficially or of record, any shares of capital stock of Company, or
rights to acquire any shares of capital stock of Company, other than
-3-
the Subject Shares set forth below Stockholder's name on the signature page
hereof (other than shares subject to options and unvested performance shares).
4.4 Other Rights. Stockholder is not entitled to any rights of first
refusal, rights of first offer, rights to notice, rights of co-sale, tag-along
rights, information rights, registration rights, preemptive rights, rights of
redemption or repurchase or similar rights of Stockholder under any agreement,
arrangement of understanding applicable to the Subject Shares, except as
disclosed in the Company Disclosure Letter and defined in the Merger Agreement.
4.5 Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Expiration
Date and will be accurate in all respects as of the date of the consummation of
the Merger as if made on that date.
SECTION 5. MISCELLANEOUS
5.1 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
5.2 Governing Law. The internal laws of the State of Delaware (irrespective
of its choice of law principles) will govern the validity of this Agreement, the
construction of its terms, and the interpretation and enforcement of the rights
and duties of the parties hereto.
5.3 Assignment; Binding Effect; Third Parties. Except as provided herein,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other party. Subject to
the preceding sentence, this Agreement shall be binding upon and shall inure to
the benefit of (a) Stockholder and Stockholder's heirs, successors and assigns
and (b) Parent and its successors and permitted assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person or entity other than
the parties hereto or their respective heirs, successors and assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
5.4 Severability. If any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, then
the remainder of this Agreement and application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto.
5.5 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
5.6 Termination; Amendment; Waiver. This Agreement shall terminate on the
Expiration Date. This Agreement may be amended by the written agreement of the
parties hereto. No waiver by any party hereto of any condition or of any breach
of any provision of this Agreement will be effective unless such waiver is set
forth in a writing signed by such party. No
-4-
waiver by any party of any such condition or breach, in any one instance, will
be deemed to be a further or continuing waiver of any such condition or breach
or a waiver of any other condition or breach of any other provision contained
herein.
5.7 Notices. All notices and other communications required or permitted
under this Agreement will be in writing and will be either hand delivered in
person, sent by telecopier, sent by certified or registered first class mail,
postage pre-paid, or sent by nationally recognized express courier service. Such
notices and other communications will be effective upon receipt if hand
delivered or sent by telecopier, three (3) days after mailing if sent by mail,
and one (l) business day after dispatch if sent by express courier, to the
following addresses, or such other addresses as any party may notify the other
parties in accordance with this Section:
If to Stockholder: If to Parent:
At the address set forth below Stockholder's FLEXTRONICS INTERNATIONAL LTD.
signature on the signature page hereto; 0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Executive Officer
or to such other address as a party designates in a writing delivered to each of
the other parties hereto.
5.8 Entire Agreement. This Agreement and any documents delivered by the
parties in connection herewith constitute the entire agreement and understanding
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party hereto unless made in writing and
signed by both parties hereto. The parties hereto waive trial by jury in any
action at law or suit in equity based upon, or arising out of, this Agreement or
the subject matter hereof.
5.9 Specific Performance. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise breached. It is
accordingly agreed that, in addition to any other remedy to which Parent is
entitled at law or in equity, Parent shall be entitled to injunctive relief to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any Delaware state court or in any U.S. federal court
located in Delaware.
5.10 Other Agreements. Nothing in this Agreement shall limit any of the
rights or remedies of Parent or any of the obligations of Stockholder under any
other agreement.
5.11 Construction. This Agreement has been negotiated by the respective
parties hereto and their attorneys and the language hereof will not be construed
for or against either party. Unless otherwise indicated herein, all references
in this Agreement to "Sections" refer to sections of this Agreement. The titles
and headings herein are for reference purposes only and will not in any manner
limit the construction of this Agreement which will be considered as a whole.
-5-
5.12 Margin Account. Notwithstanding anything contained in this Agreement,
Stockholder shall not be prohibited from depositing Subject Shares in a margin
account.
[Remainder of page intentionally left blank.]
-6-
IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be
executed as of the Agreement Date first written above.
PARENT STOCKHOLDER
By: Name:
------------------------ -----------------------------------------
(Please Print)
Title: By:
-------------------- -----------------------------------------
(Signature)
Title:
-----------------------------------------
Number of Shares Owned:
-------------------------
Address:
---------------------------------------
---------------------------------------
---------------------------------------
Facsimile: ( )
-----------------------------
[Signature Page to Company Voting Agreement]
-7-
EXHIBIT "1" TO VOTING AGREEMENT
IRREVOCABLE PROXY
The undersigned stockholder of The DII Group, Inc. a Delaware corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes Xxxxxxx X. Xxxxx, Xxxxxx X.X. Xxxxx and/or Flextronics
International Ltd., a Singapore company ("Parent"), and each of them, the
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to the fullest extent of the undersigned's rights with respect
to (i) the shares of capital stock of Company owned by the undersigned as of the
date of this proxy, which shares are specified on the final page of this proxy
and (ii) any and all other shares of capital stock of Company which the
undersigned may acquire after the date hereof. (The shares of the capital stock
of Company referred to in clauses (i) and (ii) of the immediately preceding
sentence are collectively referred to as the "Shares"). Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
Shares (other than any proxies granted to Parent) are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares, except for
such proxies as the undersigned stockholder may give in connection with the
Company's Special Meeting of Stockholders with respect to proposals or matters
unrelated to the Merger Agreement and the Merger.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with that certain Voting Agreement, dated as of the date hereof,
between Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger, dated as
of November 22, 1999, among Parent, Slalom Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of Parent, and Company (the "Merger
Agreement"). Capitalized terms used but not otherwise defined in this proxy have
the meanings ascribed to such terms in the Merger Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the Expiration Date (as defined
in the Voting Agreement) at any meeting of the stockholders of Company, however
called, or in any action by written consent of stockholders of Company:
(i) in favor of the Merger Agreement and the Merger, the execution and
delivery by Company of the Merger Agreement, the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by the
Merger Agreement, and any action required in furtherance hereof and thereof; and
(ii) in favor of the waiver (by amendment of any such agreement or
otherwise), effective immediately prior to the effectiveness of the Merger, of
any rights of first refusal, rights of first offer, rights of notice, rights of
co-sale, tag-along rights, information rights, registration rights, preemptive
rights, rights of redemption or repurchase, or similar rights of Stockholder
under any agreement, arrangement or understanding applicable to the Shares, to
the
extent that the same may apply to the Merger or any other actions or
transactions contemplated by the Merger Agreement.
The undersigned stockholder may vote the Shares on all other matters not
described in the foregoing subparagraphs (i) and (ii) above.
Prior to the Expiration Date (as such term is defined in the Voting
Agreement), at any meeting of the stockholders of Company, however called, and
in any action by written consent of stockholders of Company, the attorneys and
proxies named above may, in their sole discretion, elect to abstain from voting
on any matter covered by the foregoing subparagraphs (i) and (ii) above.
This proxy and any obligation of the undersigned hereunder shall be binding
upon the heirs, successors and assigns of the undersigned (including any
transferee of any of the Shares).
This proxy shall terminate upon the Expiration Date (as defined in the
Voting Agreement).
Dated: November 22, 1999
Name: _______________________________________
By: _________________________________________
Title (If Applicable):_______________________
