EXHIBIT 99.3
(FORM OF EXCHANGE AGENCY AGREEMENT)
__________ __, 1996
State Street Bank and Trust Company
4th Floor
2 International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Ladies and Gentlemen:
Solectron Corporation, a California corporation (the "Company"), hereby
appoints State Street Bank and Trust Company, a trust company duly organized and
existing under the laws of the Commonwealth of Massachusetts ("State Street"),
to act as exchange agent (the "Exchange Agent") pursuant to this Exchange Agent
Agreement (the "Agreement") in connection with an exchange offer by the Company
to exchange up to $150,000,000 aggregate principal amount of its 7 3/8% Senior
Notes due 2006, Series B (the "New Notes"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), for a like principal
amount of its outstanding 7 3/8% Senior Notes due 2006, Series A (the "Old
Notes," and together with the New Notes, the "Notes"). The terms and conditions
of the exchange offer are set forth in a Prospectus dated _____ __, 1996 (as the
same may be amended or supplemented from time to time, the "Prospectus") and in
the related Letter of Transmittal, which together constitute the "Exchange
Offer." The registered holders of the Notes are hereinafter referred to as the
"Holders." Capitalized terms used herein and not defined shall have the
respective meanings described thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the
Company and State Street contained herein and subject to the terms and
conditions hereof, this Agreement sets forth the agreement between the Company
and State Street as Exchange Agent for the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
(a) The Company hereby authorizes State Street to act as
Exchange Agent in connection with the Exchange Offer and State Street agrees to
act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent,
State Street will perform those services as are outlined herein or which are
customarily performed by an exchange agent in connection with an exchange offer
of like nature, including, but not limited to, accepting tenders of Old Notes,
assisting the Company in the preparation of the documentation necessary to
effect the transactions herein contemplated (without assuming responsibility for
such documentation except to the extent the information contained in such
documentation has been furnished to the Company in writing by State Street), and
communicating generally regarding the Exchange Offer with brokers, dealers,
commercial banks, trust companies and other persons, including Holders of the
Old Notes.
(b) The Company acknowledges and agrees that State Street has
been retained pursuant to this Agreement to act solely as Exchange Agent in
connection with the Exchange Offer and, in such capacity, State Street shall
perform such duties as are outlined herein and which are specifically set
forth in the section of the Prospectus captioned "The Exchange Offer" and in the
Letter of Transmittal; PROVIDED, HOWEVER, that in no way will State Street's
general duty to act in good faith and without gross negligence or willful
misconduct be discharged by the foregoing.
(c) State Street will examine each of the Letters of Transmittal
and certificates for Old Notes and any other documents delivered or mailed to
State Street by or for Holders of the Old Notes, and any book-entry
confirmations (as defined in the Prospectus) received by State Street with
respect to the Old Notes, to ascertain whether: (i) the Letters of Transmittal
and any such other documents are duly executed and properly completed in
accordance with the instructions set forth therein and that such book-entry
confirmations are in due and proper form and contain the information required to
be set forth therein, and (ii) the Old Notes have otherwise been properly
tendered. In each case where the Letters of Transmittal or any other documents
have been improperly completed or executed or where book-entry confirmations are
not in due and proper form or omit certain information, or any of the
certificates for Old Notes are not in proper form for transfer or some other
irregularity in connection with the tender or acceptance of the Old Notes
exists, State Street will endeavor, subject to the terms and conditions of the
Exchange Offer, to advise the tendering Holders of the irregularity and to take
any other action as may be necessary or advisable to cause such irregularity to
be corrected. Notwithstanding the above, State Street shall not be under any
duty to give any notification of any irregularities in tenders or incur any
liability for failure to give any such notification. State Street is authorized
to accept and act upon letters of transmittal sent by facsimile.
(d) With the approval of the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer or
any Assistant Treasurer of the Company or any other party designated by any such
officer (such approval, if given orally, to be confirmed in writing), State
Street is authorized to waive any irregularities in connection with any tender
of Old Notes pursuant to the Exchange Offer.
(e) Tenders of Old Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer" and Old Notes shall be considered properly tendered only when
tendered in accordance with such procedures set forth therein. Notwithstanding
the provisions of this paragraph, Old Notes which the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer,
any Assistant Treasurer or any other designated officer of the Company shall
approve (such approval, if given orally, to be confirmed in writing) as having
been properly tendered shall be considered to be properly tendered.
(f) State Street shall advise the Company with respect to any
Old Notes received as soon as possible after 5:00 p.m., New York City time, on
the Expiration Date and accept its instructions with respect to disposition of
such Old Notes.
(g) Upon acceptance by the Company of any Old Notes duly
tendered pursuant to the Exchange Offer (such acceptance if given orally, to be
confirmed in writing), State Street will cause New Notes in exchange therefor to
be issued as promptly as possible (subject to receipt from the Company of
appropriate certificates under the related Indenture), and State Street will
deliver such New Notes on behalf of the Company at the rate of $1,000 principal
amount of New Notes for each $1,000 principal amount of Old Notes tendered as
promptly as possible after acceptance by the Company of the Old Notes for
exchange and notice (such notice if given orally, to be confirmed in writing) of
such acceptance by the Company; PROVIDED, HOWEVER, that in all cases, Old Notes
tendered pursuant to the Exchange Offer will
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be exchanged only after timely receipt by State Street of certificates for such
Old Notes (or a book-entry confirmation), a properly completed and duly executed
Letter of Transmittal (or facsimile thereof) with any required signature
guarantees and any other required documents. Unless otherwise instructed by the
Company, State Street shall issue New Notes only in denominations of $1,000 or
any integral multiple thereof.
(h) Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time on or prior to the Expiration Date in accordance
with the terms of the Exchange Offer.
(i) Notice of any decision by the Company not to exchange any
Old Notes tendered shall be given by the Company either orally (if given orally,
to be confirmed in writing) or in a written notice to State Street.
(j) If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Old Notes tendered because of an invalid
tender or the occurrence of certain other events set forth in the Prospectus
under the caption "The Exchange Offer -- Certain Conditions to the Exchange
Offer" or otherwise, State Street shall, upon notice from the Company (such
notice, if given orally, to be confirmed in writing), promptly after the
expiration or termination of the Exchange Offer return such certificates for
unaccepted Old Notes (or effect appropriate book-entry transfer), together with
any related required documents and the Letters of Transmittal relating thereto
that are in State Street's possession, to the persons who deposited such
certificates (or effected such book-entry transfer).
(k) Certificates for reissued Old Notes, unaccepted Old Notes or
New Notes (other than those effected by book-entry transfer) shall be forwarded
by (a) first-class mail under a blanket surety bond obtained by State Street
protecting State Street and the Company from loss or liability arising out of
the non-receipt or non-delivery of such certificates or (b) by registered mail
insured by State Street separately for the replacement value of each such
certificate.
(l) State Street is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to solicit
tenders.
(m) As Exchange Agent, State Street:
(i) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal or herein or
as may be subsequently agreed to in writing by the parties thereto;
(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of any of the
certificates for the Old Notes deposited pursuant to the Exchange Offer, and
will not be required to and will make no representation as to the validity,
value or genuineness of the Exchange Offer; PROVIDED, HOWEVER, that in no way
will State Street's general duty to act in good faith and without gross
negligence or willful misconduct be limited by the foregoing;
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(iii) shall not be obligated to take any legal action
hereunder which might in State Street's reasonable judgment involve any expense
or liability, unless State Street shall have been furnished with reasonable
indemnity;
(iv) may reasonably rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to State Street and reasonably
believed by State Street to be genuine and to have been signed by the proper
party or parties;
(v) may reasonably act upon any tender, statement,
request, comment, agreement or other instrument whatsoever not only as to its
due execution and validity and effectiveness of its provisions, but also as to
the truth and accuracy of any information contained therein, which State Street
believes in good faith to be genuine and to have been signed or represented by a
proper person or persons acting in a fiduciary or representative capacity (so
long as proper evidence of such fiduciary's or representative's authority so to
act is submitted to State Street) and State Street examines and reasonably
concludes that such evidence properly establishes such authority;
(vi) may rely on and shall be protected in acting upon
written or oral instructions from the President, any Senior Vice President, any
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer or any other designated officer of the Company;
(vii) may consult with its own counsel with respect to any
questions relating to State Street's duties and responsibilities and the written
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by State Street
hereunder in good faith and in accordance with the written opinion of such
counsel; and
(viii) shall not advise any person tendering Old Notes
pursuant to the Exchange Offer as to whether to tender or refrain from tendering
all or any portion of its Old Notes or as to the market value, decline or
appreciation in market value of any Old Notes that may or may not occur as a
result of the Exchange Offer or as to the market value of the New Notes.
(n) State Street shall take such action as may from time to time
be requested by the Company (and such other action as State Street may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery, or such other forms as may be
approved from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for tendering into (or withdrawing from) the Exchange Offer.
The Company will furnish you with copies of such documents at your request.
(o) On and prior to the Expiration Date, State Street shall
orally advise the Company each day (and promptly thereafter confirm in writing
to the Company and such other person or persons as the Company may request and
more frequently during the week immediately preceding the Expiration Date or if
otherwise reasonably requested by the Company), regarding the aggregate
principal amount of Old Notes which have been duly tendered pursuant to the
Exchange Offer and the items received by State Street pursuant to the Exchange
Offer and this Agreement, separately reporting and giving cumulative totals as
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to items properly received and items improperly received. In addition, State
Street will also provide, and cooperate in making available to the Company, or
any such other person or persons designated by the Company (such request if made
orally, to be confirmed in writing) made from time to time, such other
information as the Company may reasonably request. Such cooperation shall
include, without limitation, the granting by State Street to the Company, and
such person or persons as the Company may designate, access to those persons on
State Street's staff who are responsible for receiving tenders to ensure that
immediately prior to the Expiration Date the Company shall have received
adequate information in sufficient detail to enable the Company to decide
whether to extend the Exchange Offer. State Street shall prepare a final list
of all persons whose tenders were accepted, the aggregate principal amount of
Old Notes tendered, the aggregate principal amount of Old Notes accepted and
deliver said list to the Company.
(p) Letters of Transmittal, book-entry confirmations and Notices
of Guaranteed Delivery shall be stamped by State Street as to the date and the
time of receipt thereof and shall be preserved by State Street for a period of
time at least equal to the period of time State Street preserves other records
pertaining to the transfer of securities, or one year, whichever is longer, and
thereafter shall be delivered by State Street to the Company. State Street
shall dispose of unused Letters of Transmittal and other surplus materials as
instructed by the Company.
(q) State Street hereby expressly waives any lien, encumbrance
or right of set-off whatsoever that State Street may have with respect to funds
deposited with it for the payment of transfer taxes by reasons of amounts, if
any, borrowed by the Company, or any of its subsidiaries or affiliates pursuant
to any loan or credit agreement with State Street or for compensation owed to
State Street hereunder or for any other matter.
2. COMPENSATION
Pursuant to a letter agreement, dated as of February __, 1996
(the "Bond Trusteeships Fee Schedule"), between the Company and State Street, no
additional compensation will be payable to State Street in its capacity as
Exchange Agent, it being understood and agreed that the Acceptance Fee and the
Annual Administration Fee payable pursuant to the Bond Trusteeships Fee Schedule
are intended to cover, among other things, the services of State Street as
Exchange Agent; PROVIDED, HOWEVER, that State Street reserves the right to
receive reimbursement from the Company for any reasonable out-of-pocket expenses
incurred as Exchange Agent in performing the services described herein.
3. INDEMNIFICATION
(a) The Company hereby agrees to protect, defend, indemnify and
hold harmless State Street against and from any and all costs, losses,
liabilities, expenses and claims imposed upon or asserted against State Street
on account of any action taken or omitted to be taken by State Street in
connection with its acceptance of or performance of its duties under this
Agreement and the documents related thereto as well as the reasonable costs and
expenses of defending itself against any claim or liability arising out of or
relating to this Agreement and the documents related thereto. This
indemnification shall survive the release, discharge, termination, and/or
satisfaction of this Agreement. Anything in this Agreement to the contrary
notwithstanding, the Company shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extent arising out of
State Street's bad faith, gross negligence or willful misconduct. In no case
shall the Company be liable under this Section 3 with respect to any claim
against State Street unless the Company shall be notified in writing by State
Street of the written assertion of a
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claim against State Street or of any other action commenced against State
Street, promptly after State Street shall have received such written assertion
or shall have been served with a summons in connection therewith. The Company
shall be entitled to participate at its own expense in the defense of any such
claim or other action, and, if the Company so elects, the Company may assume the
defense of any pending or threatened action against State Street in respect of
which indemnification may be sought hereunder, in which case the Company shall
not thereafter be responsible for the subsequently-incurred fees and
disbursements of legal counsel for State Street under this paragraph; PROVIDED
that the Company shall not be entitled to assume the defense of any such action
if the named parties to such action include both the Company and State Street
and representation of both parties by the same legal counsel would, in the
written opinion of counsel for State Street, be inappropriate due to actual or
potential conflicting interests between the Company and State Street. It is
understood that the Company shall not be liable under this paragraph for the
fees and disbursements of more than one legal counsel for State Street. In the
event that the Company shall assume the defense of any such suit, the Company
shall not therewith be liable for the subsequently-incurred fees and expenses of
any counsel retained by State Street.
(b) State Street agrees that, without the prior written consent
of the Company (which consent shall not be unreasonably withheld), it will not
settle, compromise or consent to the entry of an judgment in any pending or
threatened claim, action or proceeding in respect of which indemnification could
be sought in accordance with the indemnification provision of this Agreement
(whether or not State Street or the Company or any of its directors, officers
and controlling persons is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Company and its directors, officers and controlling
persons from all liability arising out of such claim, action or proceeding.
4. TAX INFORMATION
(a) State Street shall arrange to comply with all requirements
under the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that State Street is required, in
certain instances, to deduct 31% with respect to interest paid on the New Notes
and proceeds from the sale, exchange, redemption or retirement of the New Notes
from Holders who have not supplied their correct Taxpayer Identification Number
or required certification. Such funds will be turned over by State Street to
the Internal Revenue Service.
(b) State Street shall notify the Company of the amount of any
transfer taxes payable in respect of the exchange of Old Notes and, upon receipt
of written approval from the Company, shall deliver or cause to be delivered in
a timely manner to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Old Notes a check in the amount of all
transfer taxes payable, and the Company shall reimburse State Street for the
amount of any and all transfer taxes payable in respect of the exchange of Old
Notes; PROVIDED, HOWEVER, that State Street shall reimburse the Company for
amounts refunded to it in respect of its payment of any such transfer taxes, at
such time as such refund is received by State Street.
5. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts executed in and
to be performed in that state.
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6. NOTICES
Any communication or notice provided for hereunder shall be in
writing and shall be given (and shall be deemed to have been given upon receipt)
by delivery in person, telecopy, or overnight delivery or by registered or
certified mail (postage prepaid, return receipt requested) to the applicable
party at the addresses indicated below:
If to the Company:
Solectron Corporation
777 Gibraltar Drive
Milpitas, California 95035
Telecopier No.: (408) 957-8500
Attention: Susan S. Wang, Senior Vice President
and Chief Financial Officer
With a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Telecopier No.: (415) 493-6811
Attention: Steven E. Bochner, Esq.
If to State Street by Mail, Overnight Delivery, or Hand:
State Street Bank and Trust Company
2 International Place
4th Floor
Boston, Massachusetts 02110
Telecopier No.: (617) 664-5635
Attention: Corporate Trust Department
(Solectron Corporation 7 3/8% Senior Notes
due 2006)
or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section 6.
7. PARTIES IN INTEREST
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other, person any right, benefit or
remedy of an nature whatsoever under or by reason of this Agreement. Without
limitation of the foregoing, the parties hereto expressly agree that no holder
of Old Notes or New Notes shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
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8. COUNTERPARTS; SEVERABILITY
This Agreement may be executed in one or more counterparts, and
by different parties hereto on separate counterparts, each of which when so
executed shall be deemed an original, and all of such counterparts shall
together constitute one and the same agreement if any term or other provision of
this Agreement or the application thereof is invalid, illegal or incapable of
being enforced by any rule of law or public policy, and all other provisions of
this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the agreements contained herein is not affected
in any manner adverse to any party. Upon such determination that any term or
provision or the application thereof is invalid, illegal or unenforceable, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the agreements contained herein may be performed
as originally contemplated to the fullest extent possible.
9. CAPTIONS
The descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT
Other than as set forth in the Prospectus, the Letter of
Transmittal and the Notice of Guaranteed Delivery, this Agreement constitutes
the entire understanding of the parties hereto with respect to the subject
matter hereof. This Agreement may not be amended or modified nor may any
provision hereof be waived except in writing signed by each party to be bound
thereby.
11. TERMINATION
This Agreement shall terminate upon the earlier of (a) the 90th
day following the expiration, withdrawal, or termination of the Exchange Offer,
(b) the close of business on the date of actual receipt of written notice by
State Street from the Company stating that this Agreement is terminated, (c) one
year following the date of this Agreement, or (d) the time and date on which
this Agreement shall be terminated by mutual consent of the parties hereto.
12. MISCELLANEOUS
(a) State Street hereby acknowledges receipt of the Prospectus
and the Letter of Transmittal and the Notice of Guaranteed Delivery and further
acknowledges that it has examined each of them. Any inconsistency between this
Agreement, on the one hand, and the Prospectus and the Letter of Transmittal and
the Notice of Guaranteed Delivery (as they may be amended or supplemented from
time to time), on the other hand, shall be resolved in favor of the latter three
documents, except with respect to the duties, liabilities and indemnification of
State Street as Exchange Agent which shall be controlled by this Agreement.
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Kindly indicate your willingness to act as Exchange Agent and
State Street's acceptance of the foregoing provisions by signing in the space
provided below for that purpose and returning to the Company a copy of this
Agreement so signed, whereupon this Agreement and State Street's acceptance
shall constitute a binding agreement between State Street and the Company.
Very truly yours,
SOLECTRON CORPORATION
By:
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Name:
Title:
Accepted and agreed to as of
the date first written above:
STATE STREET BANK AND TRUST COMPANY
By:
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Name:
Title:
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