1
Exhibit 2.3
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of July 22, 1997 by and among Sanmina
Corporation, a Delaware corporation (the "Company") and Xxxxx Xxxxxxxx (the
"Holder").
AGREEMENT
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission" shall mean the United States Securities and
Exchange Commission or any other Federal agency at the time administering the
securities.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Registrable Securities" means any Common Stock of the
Company issued to Holder in connection with the Agreement and Plan of Merger
dated as of July 22, 1997 by and among the Company, SANM Acquisition Subsidiary,
Inc. and Elexsys International, Inc. and owned by the Holder.
The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Section 1
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration, including legal fees and
expenses of one counsel to Holder (but excluding the compensation of regular
employees of the Company which shall be paid in any event by the Company).
"Securities Act" shall mean the United States Securities Act
of 1933, as amended, or any similar Federal Statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"Selling Expenses" shall mean selling commissions and stock
transfer taxes applicable to the securities registered by the Holder.
2
1.1 Registration on Form S-3.
(a) If the Holder requests in writing that the Company file
a registration statement on Form S-3 (or any successor form to Form S-3), or any
similar short-form registration statement, for a public offering of Registrable
Securities, the reasonably anticipated aggregate price to the public of which,
net of underwriting discounts and commissions (if any), would exceed $1,000,000
and the Company is a registrant entitled to use Form S-3 to register the
Registrable Securities for such an offering, the Company shall use its best
efforts to cause such Registrable Securities to be registered on such form for
the offering and to cause such Registrable Securities to be qualified in such
jurisdictions as the Holder may reasonably request. Such registration shall
remain effective for a total period of two years.
(b) The Holder shall be entitled to one request for
registration under Section 1.1.
(c) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 1.1: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; (ii) if the Company, within
ten (10) days of the receipt of the request of the initiating Holders, gives
notice of its bona fide intention to effect the filing of a registration
statement with the Commission within thirty (30) days of receipt of such request
(other than with respect to a registration statement relating to a Rule 145
transaction, or an offering solely to employees); (iii) during the period
starting with the date thirty (30) days prior to the Company's estimated date of
filing of, and ending on the date ninety (90) days immediately following, the
effective date of any registration statement pertaining to securities of the
Company (other than a registration of securities in a Rule 145 transaction or
with respect to an employee benefit plan), provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective; or (iv) if the Company shall furnish to such
Holder a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be seriously detrimental
to the Company and its shareholders for registration statements to be filed at
that time, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed ninety (90)
days from the receipt of the request to file such registration by such Holder;
provided that such right to defer a request shall not be exercised by the
Company more than once. Notwithstanding any other provision in this Agreement to
the contrary, in the event that the Company shall provide Holder with notice
that the Company is exercising its rights under clauses (ii) through (iv) of
this paragraph (c), then the length of time that the Company is required to
maintain a registration effective under paragraph (a) of this Section 1.1 shall
be tolled for so long as the Company's obligations under this Section 1.1 are
delayed or deferred as a result of any of such clauses (ii) through (iv).
(d) In the event that the Company shall fail to be eligible
for Form S-3 prior to the termination of Holder's rights under this Section 1.1,
then the Company shall instead use Form S-1 to register the Registrable
Securities under this Section 1.1, and any period of delay caused by such
-2-
3
failure to be eligible for Form S-3 shall toll the time during which the Company
is obligated to maintain its registration effective under this Section 1.1.
1.2 Expenses of Registration. The Company shall bear all
Registration Expenses in connection with the registration exclusive of any
Selling Expenses. All Selling Expenses relating to securities registered on
behalf of the Holder shall be borne by the Holder; provided, however, that the
Company shall not be required to pay for any expenses of a registration
proceeding if the registration request is subsequently withdrawn at the request
of the Holder (in which case the Holder shall bear such expenses) unless the
withdrawal is based upon material adverse information concerning the Company of
which Holder was not aware at the time of such request.
1.3 Registration Procedures. In the case of the registration,
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep the Holder advised in writing as to the initiation of the
registration, qualification and compliance and as to the completion thereof. At
its expense the Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for two years or less if
the distribution described in the Registration Statement has been completed;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holder such reasonable number of copies
of the registration statement, preliminary prospectus, final prospectus and such
other documents as Holder may reasonably request in order to facilitate the
public offering of such securities.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holder, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) Notify the Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(f) Furnish, at the request of the Holder on the date that
the registration statement with respect to such securities becomes effective,
(i) an opinion, dated as of such date, of the
-3-
4
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to the Holder, addressed to the Holder and
(ii) a letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in connection with an
underwritten public offering and reasonably satisfactory to the Holder,
addressed to the Holder.
1.4 Temporary Cessation of Offers and Sales. The Holder
acknowledges that there may occasionally be times when the Company may be
required to suspend the use of the prospectus forming part of the registration
statement until such time as an amendment to the registration statement has been
filed by the Company and declared effective by the Commission, until the
prospectus is supplemented or amended to comply with the Securities Act, or
until such time as the Company has filed an appropriate report with the
Commission pursuant to the Exchange Act. The Holder hereby covenants that it
will not sell any Registrable Securities pursuant to said prospectus during the
period commencing at the time at which the Company gives the Holder notice of
the suspension of the use of said prospectus and ending at the time the Company
gives the Holder notice that the Holder may thereafter effect sales pursuant to
said prospectus, as the same may have been supplemented or amended. In the event
of any suspension of use of a registration statement pursuant to this paragraph,
the time period during which the Company is obligated to maintain the
effectiveness of such registration statement pursuant to this Agreement shall be
tolled for the duration of the period during which use of the registration
statement was suspended.
1.5 Indemnification.
(a) The Company will indemnify the Holder, each of its
officers, directors and partners, and each person controlling such Holder within
the meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant to this
Section 1.5, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse the Holder, each of
its officers, directors, partners and each person controlling the Holder, for
any legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by the Holder or
controlling person specifically for use therein, or the failure of the Holder to
deliver a prospectus that was delivered to the Holder prior to a sale or sales
by such Holder.
-4-
5
(b) The Holder will, if Registrable Securities held by the
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each person who controls the Company within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such directors, officers, persons,
or control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein. Notwithstanding the foregoing, the liability of
the Holder under this subsection (b) shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such Holder under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by such
Holder from the sale of Registrable Securities covered by such registration
statement. The Holder will not be required to enter into any agreement or
undertaking in connection with any registration under this Section 1 providing
for any indemnification or contribution on the part of such Holder greater than
the Holder's obligations under this Section 1.5(b).
(c) Each party entitled to indemnification under this
Section 1.5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 1 unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which the Indemnified Party in good faith
concludes there is an actual or potential conflict of interest or separate and
different defenses but shall bear the expense of such defense nevertheless. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for paragraphs (a)
through (c) of this Section 1.5 is unavailable or insufficient to hold harmless
an indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the
-5-
6
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or actions in such proportion as appropriate to
reflect the relative fault of the Company, on the one hand, and the Holder of
such Registrable Securities, on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or actions
as well as any other relevant equitable considerations, including the failure to
give any notice under paragraph (c). The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the Company, on the one
hand, or the Holder, on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Holder agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by pro rata allocation or by any other method of allocation which did not take
account of the equitable considerations referred to above in this paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or action in respect thereof, referred to above in
this paragraph, shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
paragraph, the Holder shall not be required to contribute any amount in excess
of the lesser of (i) the proportion that the public offering price of shares
sold by such Holder under such registration statement bears to the total public
offering price of all securities sold thereunder, but not to exceed the proceeds
received by such Holder for the sale of Registrable Securities covered by such
registration statement and (ii) the amount of any damages which they would have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission. No person guilty of fraudulent misrepresentations (within
the meaning of Section 11(f) of the Securities Act), shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
1.6 Information by Holder. The Holder of Registrable
Securities included in any registration shall furnish to the Company such
information regarding the Holder, the Registrable Securities held by him and the
distribution proposed by the Holder as the Company may reasonably request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
1.7 Termination of Registration Rights. The rights granted
under Section 1.1(a) of this Agreement shall terminate on the second anniversary
of the effective date of this Agreement unless the time period during which the
Company is required to maintain the effectiveness of a registration statement
under this Agreement shall be tolled in accordance with the provision herein, in
which case such termination date shall be extended for a time period identical
to such tolled period. Notwithstanding the foregoing, the rights of Holder under
Section 1.1(a) shall terminate if Holder (together with his affiliates) holds
less than 1% of the Company's outstanding Common Stock and all Registrable
Securities held by and issuable to Holder (and his affiliates) may be sold under
Rule 144 or Rule 145 during any ninety (90) day period.
1.8 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned by Holder to a transferee or assignee of Registrable Securities which
is a family member of Holder or trust for the benefit of Holder; provided,
however, (A) the transferor shall, within ten (10) days after such transfer,
furnish to the Company written
-6-
7
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned and (B) such
transferee shall agree to be subject to all restrictions set forth in this
Agreement.
1.9 SEC Reporting. With a view to making available to the
Holder the benefits of certain rules and regulations of the SEC which may permit
the sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in SEC Rule 144 or any similar or analogous
rule promulgated under the Securities Act;
(b) File with the SEC, in a timely manner, all reports and
other documents required of the Company under the Exchange Act;
(c) So long as the Holder owns any Registrable securities,
furnish to Holder forth with upon request: a written statement by the Company as
to its compliance with the reporting requirements of said Rule 144 of the
Securities Act, and of the Exchange Act (at any time after it has become subject
to such reporting requirements); a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
1.10 Effective Time. This Agreement shall become effective
upon the closing of the merger as described in the Agreement and Plan of Merger
dated as of July 22, 1997 by and among the Company, SANM Acquisition Subsidiary,
Inc. and Elexsys International Inc. In the event such agreement is terminated
prior to consummation of the Merger, this Agreement shall terminate and be of no
further force or effect concurrent with such termination.
2. Miscellaneous.
2.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
2.2 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
2.3 Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
2.4 Notices. All notices and other communications required or
permitted hereunder shall be effective upon receipt and shall be in writing and
may be delivered in person, by telecopy, electronic mail, overnight delivery
service or U.S. mail, in which event it may be mailed by first-class, certified
or registered, postage prepaid, addressed (a) if to Holder, at such address as
Holder shall have furnished the Company in writing, or, until any such Holder so
furnishes an address to the Company,
-7-
8
then to and at the address of the last Holder of such securities who has so
furnished an address to the Company, or (b) if to the Company, at its address
set forth on the signature page of this Agreement, or at such other address as
the Company shall have furnished to Holder. Notwithstanding the foregoing, all
notices and communications to addresses outside the United States shall be given
by telecopier and confirmed in writing sent by overnight or two-day courier
service.
2.5 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
2.6 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
2.7 Facsimile. Facsimile signatures shall constitute
original signatures for purposes of this Agreement.
[Remainder of page intentionally left blank.]
9
The foregoing Investors Rights Agreement is hereby executed as of the
date first above written.
"COMPANY"
SANMINA CORPORATION,
a Delaware corporation
By:____________________________
"HOLDER"
By:____________________________
Xxxxx Xxxxxxxx
