Exhibit 2.2
EXECUTION COPY
WARRANT AGREEMENT
This WARRANT AGREEMENT (this "Agreement") is entered into as of August 31,
1995, by and among Manufacturers' Services Limited, a Delaware corporation (the
"Company"), DLJ Merchant Banking Partners, L.P., a Delaware limited partnership
("DLJMBP"), DLJ International Partners, C.V., a Netherlands Antilles limited
partnership ("DLJIP"), DLJ Offshore Partners, C.V., a Netherlands Antilles
limited partnership ("DLJOP"), DLJ Merchant Banking Funding, Inc., a Delaware
corporation ("DLJMBF" and, together with DLJMBP, DLJIP and DLJOP, the "DLJ
Entities") and Bank of America National Trust and Savings Association ("Bank of
America").
A. The Company has issued to Bank of America on the date hereof a Stock
Purchase Warrant, dated August 31, 1995, to purchase 512,030 shares of the
Company's Common Stock, $.0O1 par value, (the "Common Stock") in the form of
Exhibit A hereto. The Common Stock and all other classes of the Company's Common
Stock are referred to collectively as the "Common Stock".
B. The DLJ Entities, the Company and certain other Persons have entered
into a Stockholders Agreement dated as of January 20, 1995 (the "Stockholders
Agreement") relating to the Common Stock.
C. The Company, the DLJ Entities and the Holder believe it is in their
best interest to establish provisions for the future disposition of the Warrants
and Common Stock issued and issuable upon exercise of the Warrants (the "Warrant
Shares") now or hereafter legally or beneficially owned by a Warrantholder or a
permitted transferee, to permit the Holders to become the beneficiary of certain
provisions of the Stockholders Agreement and for certain other matters.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
Section 1. Restrictions on Transfer of the Warrants and Warrant Shares.
(a) Restrictions on Transfer; Registration on the Books of the Company. No
Warrantholder may transfer any Warrant or any Warrant Shares without the consent
of the Company except to (i) any of its affiliates; (ii) any Lender as defined
in that certain Multicurrency Credit Agreement among the Company and certain of
its subsidiaries, Bank of America and certain related entities and the financial
institutions parties thereto; or (ii) any party to the Stockholders Agreement.
No transfer of a Warrant shall be effective unless and until registered on the
books of the Company maintained for such purpose, and the Company may treat the
registered holder as the absolute owner of a Warrant for all purposes and the
Person entitled to exercise the rights represented thereby. The Company agrees
to register all requested transfers upon notice from the Holder pursuant to
Section 1(b), provided such transfer is made in compliance with all applicable
federal and state securities laws. Any transferee of a Warrant, by its
acceptance thereof, agrees to be bound by all of the terms and conditions of
such Warrant and the terms of this Agreement.
(b) Notice of Proposed Transfer. Prior to any proposed transfer of any
Warrant or Warrant Shares, the holder thereof shall give written notice to the
Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer, whereupon the holder of such
Warrant or Warrant Share may transfer such Warrant or Warrant Share in
accordance with the terms of its notice. Each certificate representing the
Warrant or Warrant Share transferred as above provided shall bear the legend set
forth in Section 2, unless (i) such transfer is to the public in accordance with
the provisions of Rule 144 (or any other rule permitting public sale without
registration under the Securities Act) or (ii) the Warrantholder delivers to the
Company an opinion of counsel to the effect that the transferee and any
subsequent transferee (other than an Affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act.
The foregoing restrictions on transferability of any Warrant or Warrant
Shares shall terminate as to any particular Warrant or Warrant Share when such
Warrant or Warrant Share (i) has been effectively registered under the
Securities Act and sold or otherwise disposed of in accordance with the intended
method of disposition by the seller or sellers thereof set forth in the
registration statement concerning such shares or (ii) has been sold to the
public in accordance with Rule 144 (or any other rule permitting public sale
without registration under the Securities Act). Whenever a Holder is able to
demonstrate to the Company (and its counsel) that the provisions of Rule 144(k)
of the Securities Act are available to such Holder without limitation, such
Holder shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth in Section 2.
Any shares of Common Stock represented by a certificate that does not bear
the legend set forth in Section 2 or any similar legend shall cease to be a
Warrant Share for all purposes of this Agreement.
Section 2. Investment Representation and Legend. A Holder, by acceptance
of a Warrant, represents and warrants to the Company that it is acquiring such
Warrant and the shares of Common Stock (or other securities) issuable upon the
exercise thereof for investment purposes only and not with a view towards the
resale or other distribution thereof and agrees that the Company may affix upon
such Warrant the following legend:
"Neither this Warrant nor the shares issuable upon the exercise of
this Warrant have been registered under the Securities Act of 1933,
as amended; nor under applicable state securities laws and may not
be sold, transferred or otherwise disposed of unless it has been
registered under such laws or an exemption from registration is
available. This Warrant and the shares issuable upon the exercise of
this Warrant are also subject to the additional restrictions on
transfer set forth in the Warrant Agreement dated as of August 31,
1995, copies of which may be obtained upon request from
Manufacturers' Services Limited and any successor thereto."
A Holder, by acceptance of a Warrant, further agrees that the Company may affix
the following legend to certificates for shares of Common Stock issued upon
exercise of such Warrant:
"These securities have not been registered under the Securities Act
of 1933, as amended, nor under applicable state securities laws and
may not be sold, transferred or otherwise disposed of unless they
have been registered under such laws or an exemption from
registration is available. These securities are also subject to the
additional restrictions on transfer set forth in the Warrant
Agreement dated as of August 31, 1995, copies of which may be
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obtained upon request from Manufacturers' Services Limited and any
successor thereto."
Notwithstanding the foregoing, the Company understands that Bank of America may
transfer a portion of the Warrant to other Lenders in connection with the
syndication of the credit facility pursuant to the Credit Agreement, subject to
applicable securities laws.
Section 3. Lost, Stolen, Mutilated or Destroyed Warrant. If a Warrant or
certificate representing Warrant Shares is lost, stolen, mutilated or destroyed,
the Company shall, on such terms as to indemnity or otherwise as it may in its
discretion reasonably impose (which shall, in the case of a mutilated Warrant or
certificate representing Warrant Shares, include the surrender thereof), issue a
new Warrant or certificate representing Warrant Shares of like denomination and
tenor as the Warrant or certificate so lost, stolen, mutilated or destroyed. Any
such new Warrant or certificate shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant or certificate shall be at any time enforceable by anyone.
Section 4. Representations and Warranties of the Company.
(a) The Company represents that the rights granted to Holders hereunder
and in the Warrants do not conflict with the Certificate of Incorporation or
By-laws of the Company or any agreement to which the Company is a party or by
which its assets are bound. The Company shall not, by amendment of its
Certificate of Incorporation or By-laws or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue, sale, grant or
assumption of securities or any voluntary action, avoid or seek to avoid the
observance or performance of the terms of this Agreement or any Warrant, but
shall in good faith assist in the carrying out of such terms and in the taking
of such action as may reasonably be necessary in order to implement same.
(b) The Company represents and warrants that attached as Exhibit B hereto
is a true, complete and accurate description of the capitalization of the
Company as of the date hereof.
Section 5. Registration Rights.
(a) Each Holder shall be entitled to incidental registration rights with
respect to the Warrant Shares as are set forth in Section 5.2 of the
Stockholders Agreement as though it were a DLJ Entity and the Warrant Shares of
such Holder requested to be included in such registration shall be treated as if
such Warrant Shares were Benchmark Shares (as defined in the Stockholders
Agreement); provided that no such rights shall be available in any Initial
Public Offering (as defined in the Stockholders' Agreement) unless any DLJ
Entity shall be exercising its rights to incidental registration in accordance
with such Section 5.2. To the extent any Warrant Shares are treated as if they
were Benchmark Shares, a corresponding number of shares held by DLJ Entities
shall be deemed not to be Benchmark Shares for purposes of the Stockholders'
Agreement.
(b) If a Holder elects to sell Warrant Shares pursuant to paragraph (a)
above, such Holder shall be considered to be a Stockholder and a DLJ Entity, as
the case may be, for all relevant purposes of Sections 5.2, 5.3, 5.4, 5.5, 5.6,
5.7, 5.8, 5.9 and 5.10 of the Stockholders Agreement, except that such Holder
shall not have the right (i) to select underwriters pursuant to Section 5.4(f)
and (ii) to select legal counsel pursuant to Section 5.7. The rights granted
under this Section 5(b) are subject to the terms and conditions contained in the
Stockholders Agreement and only apply to Warrant Shares which are Registrable
Stock at the time a Holder requests that such Warrant Shares be registered.
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(c) Limitations on Registration of Issues of Securities. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of Majority Holders, enter into any agreement with any holder or
prospective holder of any securities of the Company giving such holder or
prospective holder any registration rights the terms of which are more favorable
than the registration rights granted to the Holders hereunder.
Section 6. Certain Transfer Rights.
(a) Right to Participate in Certain Transfers. If any of the DLJ Entities
(the "Selling DLJ Entity") proposes to sell (the "Proposed Sale") in one or more
series of related transactions shares of Common Stock to a Third Party (as
defined in the Stockholders Agreement), the Selling DLJ Entity shall provide
written notice (the "Sale Notice") of such proposed sale to the Holders;
provided that none of the rights described in this Section 6(a) shall apply (i)
to transfers to Permitted Transferees (as defined in the Stockholders Agreement)
of such DLJ Entity or Entities or (ii) to transfers pursuant to a Public
Offering (as defined in the Stockholders Agreement) or Rule 144. The Sale Notice
shall identify the number of shares of Common Stock subject to the Proposed
Sale, the proposed consideration per share for which the Proposed Sale (the
"Sale Price") is to be made and all other material terms and conditions thereof.
Each Holder, as to Warrant Shares held by it, shall have the option, exercisable
by irrevocable written notice to the Selling DLJ Entity within 15 days after
receipt of the Sale Notice (the "Sale Period"), to participate in the Proposed
Sale for a number of Warrant Shares held by such Holder equal to such Holder's
Pro Rata Portion (as defined below) (the "Participating Shares"); provided that
if the aggregate number of shares of Common Stock (including the Warrant Shares
to be sold by the Selling DLJ Entity and the Holders in such Proposed Sale
exceeds the number of shares that such Third Party is willing to purchase (the
"Purchase Shares"), then the number of shares of Common Stock to be sold by the
Selling DLJ Entity shall be an amount equal to the Purchase Shares reduced by
the number of Warrant Shares to be sold by the participating Holders. "Pro Rata
Portion" means, with respect to each Holder at the time of the Proposed Sale,
the number (rounded up to the nearest whole number) of Warrant Shares owned by
such Holder equal to (i) the number of shares of Common Stock subject to the
Proposed Sale identified in the Sale Notice divided by 25 multiplied by (ii) a
fraction the numerator of which is the number of Warrant Shares owned by such
Holder and the denominator of which is the aggregate number of Warrant Shares
outstanding. Each participating Holder shall deliver to the Selling DLJ Entity
the certificate or certificates representing the Participating Shares of such
Holder, together with a limited power-of-attorney authorizing the Selling DLJ
Entity to transfer such shares pursuant to the terms and conditions set forth in
the Sale Notice. Delivery of the certificate or certificates representing the
Participating Shares to be transferred and the limited power-of-attorney
authorizing the Selling DLJ Entity to transfer such shares shall constitute an
irrevocable acceptance of the Proposed Sale by the Holder.
(b) If a Holder elects to sell Warrant Shares pursuant to paragraph (a)
above, such Holder shall be considered to be an Other Stockholder for all
relevant purposes of Sections 4.1(b), (c), (d), (e) and (f) of the Stockholders
Agreement and, for purposes thereof, the Selling DLJ Entity shall be considered
to be the "Section 4.1 Seller", the Proposed Sale shall be considered to be the
"Section 4.1 Sale"), the Sale Notice shall be considered to be the "Section 4.1
Notice", the Sale Price shall be considered to be the "Section 4.1 Sale Price"
and the Sale Period shall be considered to be the "Section 4.1 Notice Period."
The rights granted under this Section 6(b) are subject to the terms and
conditions contained in the Stockholders Agreement.
(c) Notwithstanding anything herein or in the Stockholders Agreement to
the contrary, in connection with its participation in any sale by a Selling DLJ
Entity, each Holder shall comply with all of the terms and conditions with which
DLJ must comply in such transaction, including, but not limited to, any
representations and warranties as to title to the Warrants (or Warrant Shares)
being transferred and any indemnities granted to the prospective purchaser;
provided, however, that any such Holder shall not be required to make any
representation or warranty to any third party other than (a) a representation
and warranty to the effect that, at the closing of the purchase and sale, the
Holder will have title to the subject
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Warrants (or Warrant Shares) free and clear of all liens, and (b) customary,
nonoperational representations and warranties not pertaining to the financial
condition or operations of MSL or its affiliates (such as those relating to the
Holder's authority to enter into the transaction) and that no Holder shall be
required to indemnify any purchaser other than for any breach of its own
representations and warranties.
(d) Right to Compel Participation in Certain Transfers. Each Holder hereby
agrees to be bound by the provisions of Section 4.2 of the Stockholders
Agreement as if it were an Other Stockholder.
Section 7. Certain Agreements. Each Holder agrees to be bound by this
Agreement and by Section 4.1 (other than Section 4.1(a)) and Article V (other
than Section 5.1) of the Stockholders Agreement (the "Applicable Provisions") as
if it were a Stockholder, Other Stockholder and a DLJ Entity, as the context so
requires (except as otherwise specifically provided for in this Agreement). The
rights and obligations of a Holder under Sections 5 and 6 hereof may be
transferred to any other Person in connection with a transfer of the Warrant
Shares by a Holder (other than a transfer which results in the Warrant Shares
ceasing to be Registrable Stock), provided that the Company is given written
notice at the time of or within a reasonable time after such transfer of the
name and address of the transferee. Each Holder shall cause any transferee
(other than a transferee in a transfer which results in the Warrant Shares
transferred ceasing to be Registrable Stock) of the Warrant Shares to execute an
Agreement, in form and substance satisfactory to the Company and DLJ Entities,
agreeing to be bound by this Agreement and the Applicable Provisions.
Section 8. Financial Statements, Reports, Etc.
(a) Until such time as the Company becomes subject to the periodic
reporting provisions of the Exchange Act, so long as any Holder shall hold
Warrants or Warrant Shares, as the case may be, the Company shall furnish to
such Holder:
(i) within 100 days after the end of each fiscal year of the
Company, a consolidated balance sheet of the Company and its subsidiaries
as of the end of such fiscal year and the related consolidated statements
of income, changes in shareholders' equity and cash flows of the Company
and its subsidiaries for the fiscal year then ended, together with
supporting notes thereto, certified in accordance with generally accepted
accounting principles, without qualification as to scope of audit, by
Price Waterhouse or another firm of independent public accountants of
recognized national standing selected by the Company and reasonably
acceptable to the Holder,
(ii) within 45 days after the end of each fiscal quarter (other than
the last quarter in each fiscal year), a consolidated balance sheet of the
Company and its subsidiaries and the related consolidated statement of
income, unaudited but certified by the principal financial officer of the
Company, such balance sheets to be as of the end of such quarter and such
statements of income to be for such quarter and for the period from the
beginning of the fiscal year to the end of such quarter, in each case
subject to normal year-end adjustments and without supporting notes;
(iii) prompt notice of (x) any event of default under any agreement
with respect to material indebtedness for borrowed money or a material
purchase money obligation, and any event which, upon notice or lapse of
time or both, would constitute such an event of default which would permit
the holder of such indebtedness or obligation to accelerate the maturity
thereof, and (y) any action, suit or proceeding at law or in equity or by
or before any governmental instrumentality or agency which, if adversely
determined, would materially impair the right of the Company or any of its
subsidiaries to carry on its business substantially as now or then
conducted, or materially affect the business, operations, properties,
assets or financial condition of the Company and its subsidiaries taken as
a whole; and
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(iv) promptly, from time to time, such other information regarding
the operations, business, affairs and financial condition of the Company
or any subsidiary as the Holder may reasonably request.
(b) At such time as the Company becomes subject to the periodic reporting
provisions of the Exchange Act, the Company shall provide each Holder promptly
upon filing, copies of all final or effective registration statements,
prospectuses, periodic reports and other documents filed by the Company or any
of its subsidiaries with the Commission.
Section 9. Notice of Certain Actions. In the event that at any time:
(a) the Company shall authorize the issuance to all holders of its
Common Stock of any shares of capital stock of the Company convertible
into Common Stock; or
(b) the Company shall authorize the distribution to all holders of
its Common Stock of evidences of its indebtedness or assets; or
(c) the Company shall authorize any capital reorganization or
reclassification of the Common Stock (other than a subdivision or
combination of the outstanding Common Stock and other than a change in par
value of the Common Stock) or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required (other than a consolidation of merger in which the
Company is the continuing corporation and that does not result in any
reclassification or change of the Common Stock outstanding), or of the
conveyance or transfer of the properties and assets of the Company
substantially as an entirety; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then the Company shall cause to be mailed by certified mail to each Holder, at
least 20 days prior to the applicable record or effective date hereinafter
specified, a notice describing such issuance, distribution, reorganization,
reclassification, consolidation, conveyance, transfer, dissolution, liquidation,
or winding-up and stating (i) the date as of which the holders of Common Stock
or record entitled to receive any such convertible securities or distributions
are to be determined or (ii) the date on which any such consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-up is expected to
become effective and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities or other property, if any, deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding-up.
Section 10. Notices. All notices, requests and other communications
required or permitted to be given or delivered hereunder shall be in writing,
and shall be transmitted by telex or telecopy, sent by national overnight
courier service or sent by certified or registered mail, postage prepaid and
addressed, if to a Holder, to such Holder's address shown on the records of the
Company or at such other address as shall have been furnished to the Company by
notice from such Holder and, if to the Company, addressed to the Company at its
principal executive offices, Attention: President; or at such other address as
shall have been furnished to the Holder by notice from the Company and otherwise
pursuant to the provisions of Section 12.02 of the Credit Agreement.
Section 11. Certain Definitions. For the purposes of this Agreement, the
following terms have the meanings set forth below:
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"Affiliate" of any particular person or entity means any other
person or entity controlling, controlled by or under common control with
such particular person or entity.
"Credit Agreement" shall mean that certain Multi-currency Credit
Agreement dated as of August 31, 1995 among the Company, Manufacturers'
Services Limited - Roseville, Inc., a Minnesota corporation, MSL SPV
Spain, a special purpose Delaware corporation, MSL SPV Ireland, a special
purpose Delaware corporation, Bank of America (in its role as Agent,
Collateral Agent and Issuing Bank), Bank of America International Limited,
as Sub-Agent and the Lenders (as defined therein).
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Holder" means a holder of a Warrant or Warrant Shares.
"Lenders" shall have the meaning given in the Credit Agreement.
"Majority Holders" means Bank of America for so long as it is the
largest Holder of Warrants based upon the number of shares of Common Stock
into which such Warrants are exercisable or have been exercised for) and
Warrant Shares or, if Bank of America is no longer the largest Holder of
Warrants (based upon the number of shares of Common Stock into which such
Warrants are exercisable or have been exercised for), and Warrant Shares
Holders holding a majority of the aggregate Warrants (based upon the
number of shares of Common Stock into which such Warrants are exercisable
or have been exercised for) and Warrant Shares.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department,
agency or political subdivision thereof.
"Rule 144" shall mean Rule 144 as promulgated by the Commission
under the Securities Act, as such Rule may be amended from time to time,
or any similar successor rule that may be promulgated by the Commission.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
"Value" means, in respect of any share of Common Stock or Warrant on
any date herein specified:
(a) in case there is a public market for Common Stock, the average
closing price for any such shares on the largest exchange on which such
shares are traded (or if not traded on an exchange, then the average of
the closing bid and ask prices quoted over-the-counter) over the ten
trading days prior to the date of the determination; and
(b) in case there is no public market for the Common Stock, the fair
salable value of such shares as of the last day of the most recent fiscal
month prior to such date specified, as mutually agreed upon by the Company
and the Majority Holders. If no agreement is reached by such parties
described in the immediately preceding sentence within 10 business days,
the determination of Value shall be made by an independent firm of
investment bankers of recognized national standing mutually acceptable to
the Majority Holders and the Company. The Company shall pay all costs and
fees associated with any appraisal of Value.
If Value is being determined pursuant to clause (b) above, the Value
as of any date shall be determined on the basis of the value of the
Company as a going concern, based on such valuation criteria as the
investment bankers selected pursuant to clause (b)
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above shall determine. The determination further shall be based on the
assumption that immediately prior to such determination all warrants,
rights and options to purchase Common Stock or Convertible Securities were
exercised and all convertible securities were converted into Common Stock.
Such determination shall be made without discounting for minority
interest.
"Warrants" means the Stock Purchase Warrant identified in Paragraph
A on the first page of this Agreement and all other Stock Purchase
Warrants of like tenor thereto (differing as to date, identity of holder,
number of shares purchasable thereunder and other matters resulting from
events subsequent to the date of issue of the original Stock Purchase
Warrant) issued upon one or more subdivisions, exercises in part,
surrenders in part, transfers or replacements of such Stock Purchase
Warrant.
Section 12. Amendment. No provision of this Agreement or the Warrant may
be amended or otherwise modified except by an instrument in writing executed by
the Company and the DLJ Entities and approved by the Majority Holders. The DLJ
Entities and the Company agree not to amend Article IV or Article V of the
Stockholders Agreement in a manner adverse to the Holders without the consent of
the Majority Holders which consent shall not be unreasonably withheld.
Section 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD
TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
MANUFACTURERS' SERVICES LIMITED
By: /s/ [Illegible]
--------------------------------
Title: Asst Treasurer
-----------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ [Illegible]
--------------------------------
Title: Managing Director
-----------------------------
XX XXXXXXXX BANKING PARNTERS, L.P.
By: DLJ Merchant Banking, Inc.
Managing General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Sr. Vice President
-----------------------------
DLJ INTERNATIONAL PARTNERS, C.V.
By: DLJ Merchant Banking, Inc.
Advisory General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Sr. Vice President
-----------------------------
DLJ OFFSHORE PARTNERS, C.V.
By: DLJ Merchant Banking, Inc.
Advisory General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Sr. Vice President
-----------------------------
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DLJ MERCHANT BANKING FUNDING, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Atty in fact
-----------------------------
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EXHIBIT A
[FORM OF WARRANT]
A-1
NEITHER THIS WARRANT NOR THE SHARES
ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, NOR UNDER APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER SUCH LAWS OR
AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE
OF THIS WARRANT ARE ALSO SUBJECT TO THE ADDITIONAL
RESTRICTIONS ON TRANSFER SET FORTH IN THE WARRANT
AGREEMENT DATED AS OF AUGUST 31, 1995 AMONG
MANUFACTURERS' SERVICES LIMITED AND THE OTHER PARTIES
LISTED ON THE SIGNATURE PAGES THEREOF, COPIES OF WHICH
MAY BE OBTAINED UPON REQUEST FROM MANUFACTURERS'
SERVICES LIMITED AND ANY SUCCESSOR THERETO.
August 31, 1995
STOCK PURCHASE WARRANT
To Purchase Common Stock of
MANUFACTURERS' SERVICES LIMITED
-------------------------------
THIS CERTIFIES that, for value received, BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION ("Bank of America"), or its registered assigns, is
entitled to subscribe for and purchase from Manufacturers' Services Limited, a
Delaware corporation, (the "Company"), at the price of $1.00 per share (such
price, as from time to time to be adjusted as hereinafter provided, being
hereinafter called the "Warrant Price"), at any time or from time to time on or
after the date hereof, up to (subject to adjustment as hereinafter provided)
512,030 fully paid and nonassessable shares of Common Stock, $.001 par value
("Common Stock"), of the Company (such shares of Common Stock issued or issuable
upon exercise of this Warrant being referred to herein as the "Warrant Shares"),
subject, however, to the provisions and upon the terms and conditions
hereinafter set forth.
Section 1. Exercise of Warrant. This Warrant may be exercised by the
holder hereof (the "Warrantholder"), in whole or in part (but not as to a
fractional share of Common Stock), by the completion of the subscription form
attached hereto and by the surrender of this Warrant (properly endorsed) at the
executive office of the Company (or at such other agency or office of the
Company in the United States as it may designate by notice in writing to the
holder hereof at the address of the holder hereof appearing on the books of the
Company), and by payment to the Company of the Warrant Price at the election of
such holder (i) in cash or by certified or official bank check payable to the
order of the Company, in the aggregate amount of the Warrant Price applicable to
the number of Warrant Shares for which this Warrant is being exercised or (ii)
if a public market exists for the Company's stock, by receiving from the Company
the number of Warrant Shares equal to the number of Warrant Shares otherwise
issuable upon such exercise less the number of Warrant Shares having a Value (as
hereafter defined) on the date of exercise equal to the Warrant Price applicable
to the number of Warrant Shares for which this Warrant is being exercised. In
the event or any exercise of the rights represented by this Warrant, a
certificate or certificates for the shares of Common Stock so purchased,
registered in the name of the holder, shall be delivered to the holder hereof
within a reasonable time, not exceeding ten business days, after the rights
represented by this Warrant shall have been so exercised; and, unless this
Warrant has been exercised in full, a new Warrant representing the number of
shares, if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the holder hereof within such time.
With respect to any such exercise, the holder hereof shall, as between the
Company and the holder hereof, for all purposes be deemed to have become the
holder of record of the number of shares of Common Stock evidenced by such
certificate or certificates from the date on which this Warrant was surrendered
and payment of the Warrant Price was made irrespective of the date of delivery
of such certificate, except that, if the date of such surrender and payment is a
date on which the stock transfer books of the Company are closed, such person
shall, as between the Company and the holder hereof, be deemed to have become
the holder of such shares at the close of business on the next succeeding date
on which the stock transfer books are open. No fractional shares shall be issued
upon exercise of this Warrant. If any fractional interest in a share of Common
Stock would, except for the provisions of this Section 1, be delivered upon any
such exercise, the Company, in lieu of delivering the fractional share thereof,
shall pay to the holder hereof an amount in cash equal to the Value of such
fractional interest.
Section 2. Adjustment of Number of Shares. Upon each adjustment of the
Warrant Price as provided herein except any adjustment pursuant to Sections
3(a), (b), (c) or (f) hereof, the holder of this Warrant shall thereafter be
entitled to purchase, at the Warrant Price resulting from such adjustment, the
number of shares (calculated to the nearest tenth of a share) obtained by
multiplying the Warrant Price in effect immediately prior to such adjustment by
the number of Warrant Shares purchasable pursuant hereto immediately prior to
such adjustment and dividing the product thereof by the Warrant price resulting
from such adjustment. If, in calculating the number of shares as aforesaid, any
fraction of a share is rounded off, the portion so rounded off shall be carried
over and applied to the next immediately following adjustment of the Warrant
Price, if any.
Section 3. Adjustment of Warrant Price.
(a) Subdivision or Combination of Stock. In case the Company shall at any
time subdivide its outstanding shares of Common Stock into a greater number of
shares, the Warrant Price in effect immediately prior to such subdivision shall
be proportionately reduced, i.e., the holder shall be entitled to purchase after
such subdivision, for the same consideration as applicable prior to such
subdivision, the same percentage of outstanding Common Stock that such holder
was entitled to purchase prior to such subdivision, and conversely, in case the
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Warrant Price in effect immediately prior to such combination shall
be proportionately increased.
(b) Reorganization, Reclassification, Consolidation, Merger or Sale. If
any capital reorganization or reclassification of the capital stock of the
Company or any consolidation or merger of the Company with another corporation,
or the sale of all or substantially all its assets to another corporation; shall
be effected in such a way that holders of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for Common
Stock, then as a condition of such reorganization, reclassification,
consolidation, merger or sale, lawful and adequate provision will be made
whereby the holder of this Warrant shall thereafter have the right upon exercise
thereof to receive upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Common Stock immediately theretofore
receivable upon the exercise of this Warrant such shares of stock, securities or
assets (including cash) as may be issued or payable with respect to or in
exchange for a number of outstanding shares of Common Stock equal to the number
of shares of such stock immediately theretofore so receivable had such
reorganization, reclassification, consolidation, merger or sale not taken place,
and in any such case appropriate provision shall be made with respect to the
rights and interests of such holder to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Warrant Price)
shall thereafter be applicable, as nearly as may be, in relation to any shares
of stock, securities or assets thereafter deliverable upon the exercise of this
Warrant. The Company will not effect any such consolidation, merger or sale,
unless prior to the consummation thereof the successor corporation (if other
than the Company) resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument executed and mailed or
delivered to the Warrantholder at the last address of Warrantholder appearing on
the books of the Company, the obligation to deliver to
-2-
such holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to receive.
(c) Adjustment. If at any time the Company shall issue any shares of
Common Stock (other than Excluded Stock, as defined in paragraph (g) below) or
any shares of a class or series convertible into Common Stock (other than
Excluded Stock) or any Rights or Related Rights (as defined below) (collectively
with the Common Stock, "Securities") (other than a dividend or other
distribution payable in Common Stock or Convertible Securities (as defined
below), to which paragraph (e) below applies) for a consideration per share (the
consideration in each case to be determined in the manner provided in (v) and
(vi) of paragraph (d) below) less than the Warrant Price per share of the Common
Stock in effect immediately prior to the issuance of such Securities, the
Warrant Price in effect immediately prior to each such issuance shall forthwith
be adjusted to a Warrant Price (i) equal to such lesser amount per share if such
issuance occurs prior to March 1, 1996 or (ii) if the issuance occurs on or
after March 1, 1996, to a price determined by multiplying such Warrant Price in
effect immediately prior to the issuance of such Securities by a fraction, (A)
the numerator of which shall be (1) the number of shares of Common Stock
outstanding immediately prior to such issue plus (2) the number of shares of
Common Stock which the aggregate consideration received by the Company for the
total number of Securities so issued would purchase at such Warrant Price; and
(B) the denominator of which shall be (1) the number of shares of Common Stock
outstanding immediately prior to such issue plus (2) the number of such
Securities so issued.
(d) Adjustment Considerations. For the purpose of any adjustment of the
Warrant Price pursuant to paragraph (c) above, the following provisions shall be
applicable:
(i) In the case of the issuance of options or warrants to purchase,
or rights to subscribe for, Common Stock other than Excluded Stock
(collectively, the "Rights"), the aggregate maximum number of shares of
Common Stock deliverable upon exercise of the Rights shall be deemed to
have been issued at the time the Rights were issued, for a consideration
equal to the consideration (determined in the manner provided in (v) and
(vi) below), if any, received by the Company upon the issuance of the
Rights, plus the minimum purchase price provided in the Rights for the
Common Stock covered thereby; provided, that such shares of Common Stock
deliverable upon the exercise of the Rights shall not be deemed to have
been issued unless such consideration per share would be less than the
Warrant Price on the date of and immediately prior to such issuance.
(ii) In the case of the issuance of securities by their terms
convertible into or exchangeable for Common Stock other than Excluded
Stock (collectively, the "Convertible Securities"), or options or warrants
to purchase, or rights to subscribe for, securities by their terms
convertible into or exchangeable for Common Stock other than Excluded
Stock (collectively, the "Related Rights") the aggregate maximum number of
shares of Common Stock deliverable upon conversion, exchange or exercise
of any Convertible Securities or Related Rights shall be deemed to have
been issued at the time the Convertible Securities or the Related Rights
were issued and for a consideration equal to the consideration received by
the Company upon the issuance of the Convertible Securities or the Related
Rights (excluding any cash received on account of accrued interest or
accrued dividends), plus the additional consideration, if any, to be
received by the Company upon the conversion, exchange or exercise of the
Convertible Securities or Related Rights (the consideration in each case
to be determined in the manner provided in (v) and (vi) below); provided,
that such shares of Common Stock deliverable upon such conversion,
exchange or exercise of the Convertible Securities or Related Rights shall
not be deemed to have been issued unless such consideration per share
would be less than the Warrant Price on the date of and immediately prior
to such issuance.
(iii) On any change in the number of shares of Common Stock
deliverable upon the exercise of the Rights or Related Rights or upon the
conversion, exchange or exercise of the Convertible Securities or on any
change in the minimum purchase price of the Rights, Related Rights or
Convertible Securities other than a change resulting
-3-
from the antidilution provisions of the Rights, Related Rights or
Convertible Securities, the Warrant Price shall forthwith be readjusted to
such Warrant Price as would have been obtained had the adjustment made
upon the issuance of such Rights, Related Rights or Convertible Securities
not converted, exchanged or exercised prior to such change, been made upon
the basis of such change.
(iv) On the expiration of any of the Rights, Related Rights or
Convertible securities, the Warrant Price shall forthwith be readjusted to
such Warrant Price as would have been obtained had the adjustment made
upon the issuance of such Rights or Related Rights or the issuance of any
such Convertible Securities been made upon the basis of the issuance of
only the number of shares of Common Stock actually issued upon the
exercise of such Rights or Related Rights or the conversion, exchange or
exercise of any such Convertible Securities.
(v) In the case of the issuance of Securities for cash, the
consideration shall be deemed to be the amount of cash paid therefor.
(vi) In the case of the issuance of Securities for a consideration
in whole or in part other than cash, the consideration other than cash
shall be deemed to be the fair value thereof as determined in good faith
by the Board of Directors of the Company.
(e) Dividend, Other Distribution, Subdivision or Combinations. If the
Company declares a dividend or other distribution payable in Common Stock or
Convertible Securities, then the Warrant Price in effect immediately prior to
such dividend or other distribution, shall forthwith be adjusted to that price
determined by multiplying the Warrant Price by a fraction (x) the numerator of
which shall be the total number of outstanding shares of Common Stock
immediately prior to such dividend, other distribution, subdivision or
combination and (y) the denominator of which shall be the total number of
outstanding shares of Common Stock (including the number of shares of Common
Stock into which such newly issued Convertible Securities may be convertible)
immediately after such dividend, other distribution, subdivision or combination.
(f) Effect of Distributions In Kind. If the Corporation shall distribute
to the holders of its Common Stock shares of its capital stock (other than
Securities), stock or other securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding cash
dividends) or options, warrants or rights (excluding Rights or Related Rights),
then, in each such case, immediately following the record date fixed for the
determination of the holders of Common Stock entitled to receive such
distribution, the Warrant Price in effect thereafter shall be determined by
multiplying the Warrant Price in effect immediately prior to such record date by
a fraction (A) the numerator of which shall be an amount equal to the remainder
of (x) the Value immediately prior to such record date of one share of Common
Stock less (y) the Value (as determined in good faith by the Corporation's Board
of Directors) of the stock, securities, evidences of indebtedness, assets,
options, warrants or rights so distributed in respect of one share of common
Stock, as the case may be, and (B) the denominator of which shall be the Value
immediately prior to such record date of one share of Common Stock. Such
adjustment shall be made on the date such distribution is made, and shall become
effective at the opening of business on the business day following the record
date for the determination of stockholders entitled to such distribution.
(g) Excluded Stock. As used in this Section 3, "Excluded Stock" shall mean
shares of Common Stock issuable (i) upon the exercise of options issued by the
Company to its present or future employees, officers, directors or Consultants
(other than directors or Consultants affiliated with DLJ Merchant Banking
Partners, L.P. or an affiliate thereof) to purchase shares of Common Stock in
connection with or pursuant to any employee benefit or compensation plan or
employment arrangement approved by the Board of Directors, whether currently in
existence or created hereafter; or (ii) to any party to the Stockholders
Agreement (or any Permitted Transferee, as defined therein) as permitted or
contemplated by the terms of Section 2.7(a) of such Agreement as in effect on
January 20, 1995 or pursuant to those certain side letters executed on such date
by the Company and delivered to Bank of America on or prior to the
-4-
date hereof; or (iii) in connection with any acquisition of stock or assets by
the Company; provided, however, that the number of shares of Common Stock set
forth in this Section 3(g) shall be adjusted for any stock dividends,
combinations or splits. For purposes of this Section 3(g), "Consultant" shall
mean a person providing bona fide services to the Company on a regular and
on-going basis.
(h) Notice of Adjustment. Upon any adjustment of the Warrant Price, then
and in each such case the Company shall give written notice thereof, within ten
(10) days of the event causing such adjustment, by first class mail, postage
prepaid, addressed to the Warrantholder at the address of such holder as shown
on the books of the Company, which notice shall state the Warrant Price
resulting from such adjustment, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon written
request of the Warrantholder said calculation shall be verified in writing by
the Company's independent auditors.
(i) Stock to Be Reserved. The Company will at all times reserve and keep
available out of its authorized Common Stock or its treasury shares, solely for
the purpose of issue upon the exercise of this Warrant as herein provided, such
number of shares of Common Stock as shall then be issuable upon the exercise of
this Warrant. The Company covenants that all shares of Common Stock which shall
be so issued shall be duly and validly issued and fully paid and nonassessable
and free from all taxes, liens and charges with respect to the issue thereof,
and, without limiting the generality of the foregoing, the Company covenants
that it will from time to time take all such action as may be requisite to
assure that the par value per share of the Common Stock is at all times equal to
or less than the effective Warrant Price. The Company will take all such action
as may be necessary to assure that all such shares of Common Stock may be so
issued without violation of any applicable law or regulation, or of any
requirements of any national securities exchange upon which the Common Stock of
the Company may be listed. The Company will not take any action that results in
any adjustment of the Warrant Price if the total number of shares of Common
Stock issued and issuable after such action upon exercise of this Warrant would
exceed the total number of shares of Common Stock then authorized by the
Company's Certificate of Incorporation (as amended from time to time). The
Company has not granted and will not grant any right of first refusal with
respect to the Warrant Shares, and there are no preemptive rights associated
with the issuance of Warrant Shares.
(j) Issue Tax. The issuance of certificates for Warrant Shares shall be
made without charge to the holder hereof for any issuance tax in respect
thereof, provided that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issuance and delivery
of any certificate in a name other than that of the Warrantholder.
(k) Closing of Books. The Company will at no time close its transfer books
against the transfer of the shares of Common Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant.
(l) Definition of Common Stock. As used herein, the term "Common Stock"
shall mean and include all classes of Common Stock, $.001 par Value; of the
Company as authorized on September 1, 1995 and also any capital stock of any
class of the Company hereinafter authorized which shall not be limited to a
fixed sum or percentage in respect of the rights of the holders thereof to
participate in dividends or in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of the Company; provided,
however, that the shares purchasable pursuant to this Warrant shall include only
shares designated as Common Stock, $.001 par value, of the Company on September
1, 1995, or shares of any class or classes resulting from any reclassification
or reclassifications thereof which are not limited to any such fixed sum or
percentage and are not subject to redemption by the Company and in case at any
time there shall be more than one such resulting class, the shares of each class
then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
-5-
(m) Each holder of this Warrant acknowledges that this Warrant and the
Common Stock issuable hereunder (the "Warrant Shares") have not been registered
under the Securities Act of 1933, as amended (the "Act"), and agrees not to
sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this
Warrant or any Warrant Shares issued upon its exercise in the absence of an
effective registration statement under the Act as to this Warrant or such
Warrant Shares and registration or qualification of this Warrant or such Warrant
Shares under any applicable Blue Sky or state securities law then in effect, or
an exemption therefrom. Each certificate or other instrument for Warrant Shares
issued upon the exercise of this Warrant shall bear a legend substantially as
set forth below.
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, NOR UNDER APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY
HAVE BEEN REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO THE
ADDITIONAL RESTRICTIONS ON TRANSFER SET FORTH IN THE WARRANT
AGREEMENT DATED AS OF AUGUST 31, 1995, COPIES OF WHICH MAY BE
OBTAINED UPON REQUEST FROM MANUFACTURERS' SERVICES LIMITED AND ANY
SUCCESSOR THERETO."
Section 4. No Stockholder Rights or Liabilities. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a stockholder
of the Company. No provision hereof, in the absence of affirmative action by the
holder hereof to purchase shares of Common Stock, and no mere enumeration herein
of the rights or privileges of the holder hereof shall give rise to any
liability of such holder for the Warrant Price or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
Section 5. Warrant Agreement. This Warrant is issued pursuant to, and is
subject to, the terms of the Warrant Agreement dated as of August 31, 1995
between the Company and Bank of America (the "Warrant Agreement").
Section 6. Definitions. Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Warrant Agreement.
-6-
Section 7. Notices. All notices, requests and other communications
required or permitted to be given or delivered hereunder shall be given in the
manner provided in the Warrant Agreement.
IN WITNESS WHEREOF, Manufacturers' Services Limited has executed this
Warrant on and as of the day and year first above written.
Manufacturers' Services Limited
By: __________________________________
Title: __________________________________
Attest:
______________________________
(Signature)
______________________________
(Print name)
______________________________
(Title)
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SUBSCRIPTION FORM TO BE EXECUTED
UPON EXERCISE OF THE WARRANT
Date: ____________________
Manufacturers' Services Limited:
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to subscribe for and purchase _____________ shares of
Common Stock of Manufacturers' Services Limited covered by such Warrant, and
herewith tenders (i) $_____________ or (ii) ________________________ Warrant
Shares, in full payment of the purchase price for such shares.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By ______________________________________
Title ___________________________________
Address _____________________________
_____________________________
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EXHIBIT B
TOTAL SHARES OUTSTANDING AND RESERVED
Type of Stock No. of Shares
------------- -------------
Preferred Stock None
Common Stock 20,850,000(1)
Options(2) None
--------------------
(1) Excludes 30,000,000 shares to be issued to DLJ Merchant Banking Partners,
L.P. and affiliates on September 1, 1995 and 353,000 shares to be issued to the
Trustee of Omnitron Limited shareholders.
(2) It is contemplated that MSL will adopt a management stock option plan that
will provide for options to purchase a total of 8,500,000 shares of common stock
to be granted to management of the Company at exercise prices ranging from $1.00
to $5.00 per share. 6,000,000 of such options will have vesting schedules based
on the Company's achieving certain financial performance thresholds.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that DLJ Merchant Banking Funding, Inc., a
Delaware Corporation, hereby constitutes and appoints XXXXX XXXXXX as its true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for it and in its name, place and stead, in any and all
capacities, to sign any and all documents in connection with the closing of the
closing of the financing of MANUFACTURERS' SERVICES LIMITED, a Delaware
Corporation, to be held on September 1, 1995, or any adjournment thereof,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as it might or could do
in person, thereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This appointment shall expire thirty days from the date hereof.
Dated: August 30, 1995
DLJ MERCHANT BANKING FUNDING, INC.
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that DLJ Merchant Banking Partners, L.P.,
a Delaware Partnership, hereby constitutes and appoints XXXXX XXXXXX as its true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for it and in its name, place and stead, in any and all
capacities, to sign any and all documents in connection with the closing of the
closing of the financing of MANUFACTURERS' SERVICES LIMITED, a Delaware
Corporation, to be held on September 1, 1995, or any adjournment thereof,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as it might or could do
in person, thereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This appointment shall expire thirty days from the date hereof.
Dated: August 30, 1995
DLJ MERCHANT BANKING PARTNERS, L.P.
By: DLJ MERCHANT BANKING, INC.
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that DLJ International Partners, C.V., a
Netherlands Antilles Limited Partnership, hereby constitutes and appoints XXXXX
XXXXXX as its true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for it and in its name, place and stead, in any
and all capacities, to sign any and all documents in connection with the closing
of the financing of MANUFACTURERS' SERVICES LIMITED, a Delaware Corporation, to
be held on September 1, 1995 or an adjournment thereof, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as it might or could do in
person, thereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This appointment shall expire thirty days from the date hereof.
Dated: August 30, 1995
DLJ INTERNATIONAL PARTNERS, C.V.
By: DLJ MERCHANT BANKING, INC.
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that DLJ Offshore Partners, CV., a
Netherlands Antilles Limited Partnership, hereby constitutes and appoints XXXXX
XXXXXX as its true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for it and in its name, place and stead, in any
and all capacities, to sign any and all documents in connection with the closing
of the financing of MANUFACTURERS' SERVICES LIMITED, a Delaware Corporation, to
be held on September 1, 1995 or an adjournment thereof, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as it might or could do in
person, thereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This appointment shall expire thirty days from the date hereof.
Dated: August 30, 1995
DLJ OFFSHORE PARTNERS, C.V.
By: DLJ MERCHANT BANKING, INC.
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that DLJ Merchant Banking Partners, LP., a
Delaware Partnership, hereby constitutes and appoints XXXXX XXXXXX as its true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for it and in its name, place and stead, in any and all
capacities, to sign any and all documents relating to the current financing of
MANUFACTURERS' SERVICES LIMITED, a Delaware Corporation, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as it might or could do in
person, thereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: August 30, 1995
DLJ MERCHANT BANKING PARTNERS, L.P.
By: DLJ MERCHANT BANKING, INC.
By: /s/ Xxx Xxxxx
--------------------------------
