EXHIBIT 4.01
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of November 4, 2004 by and between Flextronics International Ltd., a
Singapore company ("FLEXTRONICS"), and the individuals and entities listed on
Exhibit A attached hereto (the "HOLDERS").
RECITALS
A. This Agreement is entered into pursuant to that certain Acquisition
Agreement dated as of August 26, 2004 (the "ACQUISITION AGREEMENT") by and
among Flextronics, Flextronics Technology (Mauritius) Limited, a Mauritius
company and an indirect wholly-owned subsidiary of Flextronics ("PURCHASER"),
Future Software Limited, an Indian company (the "COMPANY") and certain
shareholders of the Company.
B. The Acquisition Agreement provides that, subject to the terms and
conditions of the Acquisition Agreement, the Purchaser will purchase all of the
issued, subscribed and paid up share capital of the Company (the "ACQUISITION")
in exchange for the issuance of ordinary shares, par value S$0.01 per share, of
Flextronics (the "ISSUER SHARES") to certain shareholders of the Company and the
payment of cash consideration to certain other shareholders of the Company.
C. As a condition to the approval of the Acquisition Agreement the
Acquisition and the transactions contemplated by the Acquisition Agreement by
Sponsor and the Corporate Shareholders (collectively, the "HOLDERS"),
Flextronics will grant the registration rights to the Holders as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS AND REFERENCES.
Unless otherwise defined herein, the capitalized terms in this Agreement
have the same meanings given to them in the Acquisition Agreement. For purposes
of this Agreement, in addition to the definitions set forth elsewhere herein or
in the Acquisition Agreement, the following terms shall have the following
respective meanings:
"AFFILIATE" of a Holder shall mean a person who controls, is controlled by
or is under common control with such Holder, or the spouse or children (or a
trust exclusively for the benefit of a spouse and/or children) of such Holder.
"REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a registration
effected by preparing and filing a Registration Statement or similar document in
compliance with the United States Securities Act of 1933, as amended (the "1933
ACT"), and the declaration or ordering of effectiveness of such Registration
Statement or document by the United States Securities and Exchange Commission
(the "SEC").
"REGISTRABLE STOCK" shall mean (a) the Issuer Shares issued to a Holder
pursuant to the Acquisition Agreement; and (b) any Issuer Shares issued as (or
issuable upon the conversion or exercise of any warrant, right, option or other
convertible security which is issued as) a dividend or other distribution with
respect to, or in exchange for, or in replacement of, such Issuer Shares. For
purposes of this Agreement, any Registrable Stock shall cease to be Registrable
Stock when (x) a Registration
Statement covering such Registrable Stock has been declared effective and such
Registrable Stock has been disposed of pursuant to such effective Registration
Statement, or (y) such Registrable Stock is sold by a person in a transaction
that is exempt from registration pursuant to Rule 144 under the 1933 Act or a
transaction in which the Holders' rights under this Agreement are not assigned
in accordance with Section 6 of this Agreement. In addition, the Registrable
Stock held by any Holder shall cease to be Registrable Stock on such date on
which all of the Registrable Stock held by such Holder can be sold within a
period of three months pursuant to Rule 144 promulgated under the 1933 Act (or
any similar provision then in force).
2. "SHELF" REGISTRATION.
(a) Subject to subsection (b) below, Flextronics shall file within one
(1) business day following the Closing Date with the SEC a "shelf"
registration statement on Form S-3 in the format required by the SEC
with all required exhibits on a continuous or delayed basis pursuant
to Rule 415(a)(1) under the 1933 Act (the "REGISTRATION STATEMENT")
for the public resale by the Holders of the Registrable Stock
(including the Remainder Shares to the extent permitted by the 1933
Act and the rules and regulations of the SEC or otherwise, with
respect to the Remainder Shares, as soon as practicable after the
Holdback Release Date), and shall use all reasonable efforts to
ensure that such Form S-3 becomes effective under the Securities Act
as soon as possible following the Closing and in any event within
ten (10) business days of the Closing and (ii) with respect to the
Remainder Shares, if any, to be issued to the Sponsor and the
Corporate Shareholder hereunder as promptly as possible following
the date of issuance thereof and shall use all reasonable efforts to
ensure that such Form S-3 becomes effective under the 1933 Act as
soon as possible following the date of such issuance and in any
event within ten (10) business days thereof. The plan of
distribution indicated in the Registration Statement will include
all such transactions as the Holders may reasonably request in
writing prior to the filing of the Registration Statement and that
can be included in the Registration Statement under the rules and
regulations of the SEC. Flextronics shall use all reasonable efforts
to keep the Registration Statement continuously effective under the
1933 Act until the earlier of (x) the date which is two (2) years
after the date hereof and (y) the date when all Registrable Stock
covered by such Registration Statement has been sold or may be sold
pursuant to Rule 144 promulgated under the 1933 Act (or any similar
provision then in force) without application of the volume
limitations under Rule 144. The Holders will only offer and sell
Registrable Stock in a transaction that is covered by the plan of
distribution indicated in the Registration Statement or is exempt
from registration under the 0000 Xxx.
(b) The obligations of Flextronics to file the Registration Statement
within one (1) business day following the Closing Date pursuant to
subsection (a) are contingent upon the Closing Date actually
occurring on a date that has been agreed to by the parties at least
seven (7) days in advance of such date.
(c) Subject to Flextronics's compliance with subsection (a) of this
Section 2, the parties hereby acknowledge that Flextronics shall not
have any liability to any person in the event that any Form S-3 is
not declared effective by the SEC within the applicable period
specified above, provided that Flextronics is pursuing, in good
faith, the declaration of effectiveness of such Form S-3 by the SEC.
3. OBLIGATIONS OF FLEXTRONICS. Flextronics shall:
(a) prepare and file with the SEC such amendments and supplements to
the Registration Statement and the prospectus used in connection therewith as
may be necessary to keep the Registration Statement effective and to comply with
the provisions of the 1933 Act with respect to the disposition of all
Registrable Stock covered by the Registration Statement for the period required
to effect the distribution of the Registrable Stock as set forth in Section 2;
(b) use all reasonable efforts to register or qualify the
Registrable Stock covered by the Registration Statement under the securities or
Blue Sky laws of such jurisdiction within the United States and Puerto Rico as
shall be reasonably requested by the Holders for the distribution of the
Registrable Stock covered by the Registration Statement; provided, however, that
Flextronics shall not be required in connection therewith or as a condition
thereto to qualify to do business in or to file a general consent to service of
process in any jurisdiction wherein it would not but for the requirements of
this paragraph (b) be obligated to do so; and provided, further, that with
respect to Registrable Stock held by any Holder, Flextronics shall not be
required to qualify such Registrable Stock in any jurisdiction in which the
securities regulatory authority requires that such Holder submit any of his or
her Registrable Stock to the terms, provisions and restrictions of any escrow,
lockup or similar agreement(s) for consent to sell Registrable Stock in such
jurisdiction unless such Holder agrees to do so; and
(c) promptly notify the Holders at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act of the happening
of any event as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances under
which they were made and, at the request of any Holder, promptly prepare and
furnish to such Holder a reasonable number of copies of a supplement to or an
amendment of such prospectus, or a revised prospectus, as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made; provided, that in the event of a material development or transaction
affecting Flextronics that has not yet been publicly disclosed, if Flextronics
shall furnish to the Holders a written notice executed by a duly authorized
officer of Flextronics (such notice being referred to herein as a "DEFERRAL
NOTICE") that Flextronics has determined in good faith that it would be
adversely affected by such disclosure, Flextronics may defer preparing and
furnishing such supplement or amendment until the earlier of (i) such time as it
would not be so adversely affected, or (ii) the expiration of one hundred and
twenty days from the date of the Deferral Notice, at which time it shall so
notify the Holders ("SECOND NOTICE") and shall prepare and furnish to the
Holders any such supplement or amendment as may then be required; and provided
further that Flextronics shall not be entitled to defer the preparation and
furnishing of any such supplement or amendment more than once in any
twelve-month period. Following receipt of any supplement or amendment to any
prospectus, the Holders shall deliver such amended, supplemental or revised
prospectus in connection with any offers or sales of Registrable Stock, and
shall not deliver or use any prospectus not so amended, supplemented or revised.
Following receipt of a Deferral Notice, the Holders shall not make any further
sales of Registrable Stock pursuant to the Registration Statement until the
Holders receive the Second Notice, and any such amendment or supplement, from
Flextronics.
4. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of Flextronics to take any action pursuant to this Agreement that
each Holder shall furnish to Flextronics such information regarding itself, the
Registrable Stock held by it, and the intended method of disposition of such
securities as Flextronics shall reasonably request and as shall be required in
connection with the actions to be taken by Flextronics hereunder.
5. EXPENSES. All expenses incurred in connection with the registration
pursuant to this Agreement, excluding underwriters' or brokers' discounts and
commissions, but including, without limitation, all registration, filing and
qualification fees, word processing, duplicating, printers' and accounting fees,
listing fees, messenger and delivery expenses, all fees and expenses of
complying with state securities or Blue Sky laws, and the fees and disbursements
of counsel for Flextronics, shall be paid by Flextronics. Each Holder shall bear
and pay the underwriting discounts and commissions and brokerage fees applicable
to securities offered for his or her account in connection with any
registrations, filings and qualifications made pursuant to this Agreement and
the fees and disbursements of any counsel for such Holder.
6. TRANSFER OF REGISTRATION RIGHTS. The registration rights of a Holder
under this Agreement with respect to any Registrable Stock may be transferred or
assigned to (a) any transferee or assignee of such Registrable Stock who, after
such transfer or assignment, holds at least 5,000 shares of Registrable Stock
previously held by such Holder or (b) an Affiliate of such Holder; provided,
however, that (i) such Holder shall give Flextronics written notice prior to the
time of such transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under this Agreement
are being transferred; (ii) such transferee shall agree in writing, in form and
substance reasonably satisfactory to Flextronics, to be bound as a Holder by the
provisions of this Agreement; and (iii) immediately following such transfer the
further disposition of such securities by such transferee is restricted under
the 1933 Act.
7. INDEMNIFICATION. In the event any Registrable Stock is included in a
Registration Statement under this Agreement:
(a) Flextronics shall indemnify and hold harmless each Holder, such
Holder's directors and officers, each person who participates in the offering of
such Registrable Stock, including underwriters (as defined in the 1933 Act), and
each person, if any, who controls such Holder or participating person within the
meaning of the 1933 Act, against any losses, claims, damages or liabilities,
joint or several, to which they may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
proceedings in respect thereof) arise out of or are based upon any untrue or
alleged untrue statement of any material fact contained in the Registration
Statement on the effective date thereof (including any prospectus filed under
Rule 424 under the 1933 Act or any amendments or supplements thereto) or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each such Holder, such Holder's
directors and officers, and such participating person or controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 7(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Flextronics; provided, further, that Flextronics shall not be liable to any
Holder, such Holder's directors and officers, participating person or
controlling person in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
connection with the Registration Statement, preliminary or final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished by or on behalf of any such Holder, such Holder's
directors and officers, participating person or controlling person expressly for
use in connection with such registration; provided, further, that Flextronics
shall not be liable to any Holder, such Holder's directors and officers,
participating person or controlling person in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon an offer or sale by such Holder in violation of any of such Holder's
obligations under Section 3(c). Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any such Holder,
such Holder's
directors and officers, participating person or controlling person, and shall
survive the transfer of such securities by such Holder and any termination of
this Agreement.
(b) Each Holder severally and not jointly shall indemnify and hold
harmless Flextronics, each of its directors and officers, each person, if any,
who controls Flextronics within the meaning of the 1933 Act, and each agent and
any underwriter for Flextronics (within the meaning of the 0000 Xxx) against any
losses, claims, damages or liabilities, joint or several, to which Flextronics
or any such director, officer, controlling person, agent or underwriter may
become subject under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or proceedings in respect thereof) arise out of or are
based upon any untrue or alleged untrue statement of any material fact contained
in the Registration Statement (including any prospectus filed under Rule 424
under the 1933 Act or any amendments or supplements thereto) or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, preliminary or final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written information
furnished by or on behalf of such Holder expressly for use in connection with
such registration; and each such Holder shall reimburse any legal or other
expenses reasonably incurred by Flextronics or any such director, officer,
controlling person, agent or underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 7(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of such Holder; provided,
further, that the liability of each Holder hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense which is equal
to the proportion that the net proceeds from the sale of the shares sold by such
Holder under such Registration Statement bears to the total net proceeds from
the sale of all securities sold thereunder, but not in any event to exceed the
net proceeds received by such Holder from the sale of Registrable Stock covered
by such Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 7, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and assume the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the indemnified party;
provided, however, that an indemnified party shall have the right to retain its
own counsel, with all fees and expenses thereof to be paid by such indemnified
party, and to be apprised of all progress in any proceeding the defense of which
has been assumed by the indemnifying party. The failure to notify an
indemnifying party promptly of the commencement of any such action, if and to
the extent prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
7, but the omission so to notify the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 7.
(d) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information
and opportunity to correct or prevent such action. The amount paid or payable by
a party as a result of the losses, claims, damages or liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
8. GENERAL PROVISIONS.
(a) Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered, transmitted by facsimile, delivered by nationally
recognized overnight courier or if deposited in the U.S. mail by registered or
certified mail, return receipt requested, postage prepaid, as follows. Notices
shall be delivered at the addresses set forth in the Acquisition Agreement. Any
party hereto may by notice so given change its address or facsimile number for
future notices hereunder. Notice shall conclusively be deemed to have been given
when personally delivered or on the third business day after deposit in the mail
in the manner set forth above.
(b) Entire Agreement; Independence of Obligations. This Agreement
constitutes and contains the entire agreement and understanding of the parties
with respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties or obligations
between the parties respecting the subject matter hereof. In the event of any
conflict between this Agreement and the Acquisition Agreement, the terms of this
Agreement shall control.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California without regard
to conflicts of law principles.
(d) Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
(e) Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
(f) Successors and Assigns. Subject to the provisions of Section 6,
the provisions of this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and permitted assigns of the parties hereto.
(g) Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
(i) Costs and Attorneys' Fees. In the event that any action, suit or
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the
prevailing party shall recover all of such party's costs and attorneys' fees
incurred in each such action, suit or other proceeding, including any and all
appeals or petitions therefrom.
(j) Adjustments for Stock Splits, Etc. Wherever in this Agreement
there is a reference to a specific number of Issuer Shares, then, upon the
occurrence of any subdivision, combination or share dividend of such class of
shares, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the effect on the
outstanding shares of such class or series of shares by such subdivision,
combination or share dividend.
(k) Arbitration of Disputes. Any disputes arising under this
Agreement shall be subject to the arbitration provisions set forth in Section
13.1 of the Acquisition Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
FLEXTRONICS INTERNATIONAL LTD.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Authorised Signatory
HOLDERS
Sponsor Indian Auto Ancillary Fund
acting through IL & FS Investment
By: /s/ X.X. Xxxxxx Managers Limited
Name: X.X. Xxxxxx By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Intel Capital Corporation
By: /s/ Xxxxxxx Xx Digital Holdings Private Limited
Name: Xxxxxxx Xx By: /s/ X.X. Xxxxxx
Title: Authorised Signatory Name: K.V. Xxxxxx
XXXX Fund Trustee Company Limited
acting through IL & FS Investment
Managers Limited
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
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