PARENT VOTING AGREEMENT
This PARENT VOTING AGREEMENT (this "Agreement") is entered into as of
November 22, 1999 (the "Agreement Date") by and between The DII Group, Inc., a
Delaware corporation (the "Company") and [name of shareholder] ("Shareholder").
RECITALS
A. Flextronics International Ltd., a Singapore company (the "Parent"),
Company and Slalom Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Sub") are entering into an Agreement and Plan of Merger
dated as of November 22, 1999, as such may be hereafter amended from time to
time (the "Merger Agreement") which provides (subject to the conditions set
forth therein) for the merger of Sub with and into Company (the "Merger") with
Company to survive the Merger. Upon the effectiveness of the Merger, the
outstanding shares of Company's Common Stock will be converted into the right to
receive Ordinary Shares of Parent and outstanding options to purchase shares of
Company's Common Stock will be assumed by Parent, all as more particularly set
forth in the Merger Agreement. Capitalized terms used but not otherwise defined
in this Agreement will have the same meanings ascribed to such terms in the
Merger Agreement.
B. As of the Agreement Date, Shareholder owns in the aggregate (including
shares held both beneficially and of record and other shares held either
beneficially or of record) the number of Parent's Ordinary Shares set forth
below Shareholder's name on the signature page of this Agreement (all such
shares, together with any of Parent's Ordinary Shares or any other shares of
capital stock of Parent that may hereafter be acquired by Shareholder, being
collectively referred to herein as the "Subject Shares"). If, between the
Agreement Date and the Expiration Date (as defined in Section 1.1 below),
Parent's outstanding Ordinary Shares are changed into a different number or
class of shares by reason of any stock split, stock dividend, reverse stock
split, reclassification, recapitalization or other similar transaction, then the
shares constituting the Subject Shares shall be appropriately adjusted, and
shall include any shares or other securities of Parent issued on, or with
respect to, the Subject Shares in such a transaction.
C. As a condition to the willingness of Company to enter into the Merger
Agreement, Company has requested that Shareholder agree, and in order to induce
Company to enter into the Merger Agreement, Shareholder has agreed, to enter
into this Agreement.
In consideration of the facts recited above, the parties to this Agreement,
intending to be legally bound by this Agreement, now hereby agree as follows:
SECTION 1. TRANSFER OF SUBJECT SHARES
1.1 No Transfer of Voting Rights.
(a) Shareholder covenants and agrees that, prior to the Expiration Date,
Shareholder will not deposit any of the Subject Shares into a voting trust or
grant a proxy or enter into an agreement of any kind with respect to any of the
Subject Shares, except for the Proxy
called for by Section 2.2 of this Agreement and except for any other proxy
granted by Shareholder to Company.
(b) As used in this Agreement, the term "Expiration Date" shall mean the
earlier of (i) the date upon which the Merger Agreement is validly terminated in
accordance with the provisions of Article VII of the Merger Agreement or (ii)
the Effective Time of the Merger.
1.2 Compliance with Parent Affiliate Agreement. If Shareholder is a party
to a Parent Affiliate Agreement, Shareholder will comply with the terms of such
Parent Affiliate Agreement.
SECTION 2. VOTING OF SUBJECT SHARES
2.1 Agreement. Shareholder hereby agrees that, prior to the Expiration
Date, at any meeting of the shareholders of Parent, however called, and in any
action taken by the written consent of shareholders of Parent without a meeting,
unless otherwise directed in writing by Company, Shareholder shall vote the
Subject Shares:
(a) in favor of the Merger, the execution and delivery by Parent of the
Merger Agreement and the adoption and approval of the terms thereof and in favor
of each of the other actions and transactions contemplated by the Merger
Agreement and any action required in furtherance hereof and thereof; and
(b) in favor of the waiver (by amendment of any such agreement or
otherwise), effective as of immediately prior to the effectiveness of the
Merger, of any rights of first refusal, rights of first offer, rights of notice,
rights of co-sale, tag-along rights, information rights, registration rights,
preemptive rights, rights of redemption or repurchase, or similar rights of
Shareholder under any agreement, arrangement or understanding applicable to the
Subject Shares, to the extent that the same may apply to the Merger or any other
actions or transactions contemplated by the Merger Agreement.
Prior to the Expiration Date, Shareholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with clause "(a)" or "(b)" of this Section 2.1.
2.2 Proxy. Contemporaneously with the execution of this Agreement,
Shareholder shall deliver to Company a proxy with respect to the Subject Shares
in the form attached hereto as Exhibit 1, which proxy shall be irrevocable to
the fullest extent permitted by applicable law (the "Proxy").
2.3 No Limitations as Director. Nothing contained in this Agreement shall
be deemed to apply to, or to limit in any manner, the obligations of Shareholder
under his fiduciary duties as a director of Parent.
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SECTION 3. WAIVERS
3.1 Appraisal Rights. Shareholder hereby agrees not to exercise any rights
of appraisal and any dissenters' rights that Shareholder may have (whether under
applicable law or otherwise) or could potentially have or acquire in connection
with the Merger.
3.2 Other Rights. Shareholder hereby waives any rights of first refusal,
rights of first offer, rights to notice, rights of co-sale, tag-along rights,
information rights, registration rights, preemptive rights, rights of redemption
or repurchase, and similar rights of Shareholder under any agreement,
arrangement of understanding applicable to the Subject Shares, in each case as
the same may apply to the execution and delivery of the Merger Agreement and the
consummation of the Merger and the other actions and transactions contemplated
by the Merger Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to Company as follows:
4.1 Due Authorization, etc. Shareholder has all requisite power and
capacity to execute and deliver this Agreement and to perform Shareholder's
obligations hereunder. This Agreement has been duly executed and delivered by
Shareholder and constitutes a legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its terms,
subject to (a) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (b) rules of law governing specific performance,
injunctive relief and other equitable remedies.
4.2 No Conflicts, Required Filings and Consents.
(a) The execution and delivery of this Agreement by Shareholder do not, and
the performance of this Agreement by Shareholder will not: (i) conflict with or
violate any order, decree or judgment applicable to Shareholder or by which
Shareholder or any of Shareholder's properties or Subject Shares is bound or
affected; or (ii) result in any breach of or constitute a default (with notice
or lapse of time, or both) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any
lien, restriction, adverse claim, option on, right to acquire, or any
encumbrance or security interest in or to, any of the Subject Shares pursuant
to, any written, oral or other agreement, contract or legally binding commitment
to which Shareholder is a party or by which Shareholder or any of Shareholder's
properties (including but not limited to the Subject Shares) is bound or
affected.
(b) The execution and delivery of this Agreement by Shareholder do not, and
the performance of this Agreement by Shareholder will not, require any written,
oral or other agreement, contract or legally binding commitment of any third
party.
4.3 Title to Subject Shares. As of the Agreement Date, Shareholder
beneficially or of record owns the Subject Shares set forth under Shareholder's
name on the signature page hereof and does not directly or indirectly own,
either beneficially or of record, any shares of capital stock of Parent or
rights to acquire any shares of capital stock of Parent, other than the
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Subject Shares set forth below Shareholder's name on the signature page hereof
(other than shares subject to options and unvested performance shares).
4.4 Other Rights. Shareholder is not entitled to any rights of first
refusal, rights of first offer, rights to notice, rights of co-sale, tag-along
rights, information rights, registration rights, preemptive rights, rights of
redemption or repurchase or similar rights under any agreement, arrangement of
understanding applicable to the Subject Shares, except as disclosed in the
Parent Disclosure Letter (as defined in the Merger Agreement).
4.5 Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Expiration
Date and will be accurate in all respects as of the date of the consummation of
the Merger as if made on that date.
SECTION 5. MISCELLANEOUS
5.1 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
5.2 Governing Law. The internal laws of the State of Delaware (irrespective
of its choice of law principles) will govern the validity of this Agreement, the
construction of its terms, and the interpretation and enforcement of the rights
and duties of the parties hereto.
5.3 Assignment; Binding Effect; Third Parties. Except as provided herein,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other party. Subject to
the preceding sentence, this Agreement shall be binding upon and shall inure to
the benefit of (a) Shareholder and Shareholder's heirs, successors and assigns
and (b) Company and its successors and permitted assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person or entity other than
the parties hereto or their respective heirs, successors and assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
5.4 Severability. If any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, then
the remainder of this Agreement and application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto.
5.5 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
5.6 Termination; Amendment; Waiver. This Agreement shall terminate on the
Expiration Date. This Agreement may be amended by the written agreement of the
parties hereto. No waiver by any party hereto of any condition or of any breach
of any provision of this Agreement will be effective unless such waiver is set
forth in a writing signed by such party. No
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waiver by any party of any such condition or breach, in any one instance, will
be deemed to be a further or continuing waiver of any such condition or breach
or a waiver of any other condition or breach of any other provision contained
herein.
5.7 Notices. All notices and other communications required or permitted
under this Agreement will be in writing and will be either hand delivered in
person, sent by telecopier, sent by certified or registered first class mail,
postage pre-paid, or sent by nationally recognized express courier service. Such
notices and other communications will be effective upon receipt if hand
delivered or sent by telecopier, three (3) days after mailing if sent by mail,
and one (l) business day after dispatch if sent by express courier, to the
following addresses, or such other addresses as any party may notify the other
parties in accordance with this Section:
If to Shareholder: If to Company:
At the address set forth below Shareholder's THE DII GROUP, INC.
signature on the signature page hereto 6273 Monarch Park Place, Suite 200
Niwot, CO 80503
Attn: Chief Executive Officer
or to such other address as a party designates in a writing delivered to each of
the other parties hereto.
5.8 Entire Agreement. This Agreement and any documents delivered by the
parties in connection herewith constitute the entire agreement and understanding
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party hereto unless made in writing and
signed by both parties hereto. The parties hereto waive trial by jury in any
action at law or suit in equity based upon, or arising out of, this Agreement or
the subject matter hereof.
5.9 Specific Performance. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise breached. It is
accordingly agreed that, in addition to any other remedy to which Company is
entitled at law or in equity, Company shall be entitled to injunctive relief to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any Delaware court or in any U.S. federal court located in
Delaware.
5.10 Other Agreements. Nothing in this Agreement shall limit any of the
rights or remedies of Company or any of the obligations of Shareholder under any
other agreement.
5.11 Construction. This Agreement has been negotiated by the respective
parties hereto and their attorneys and the language hereof will not be construed
for or against either party. Unless otherwise indicated herein, all references
in this Agreement to "Sections" refer to sections of this Agreement. The titles
and headings herein are for reference purposes only and will not in any manner
limit the construction of this Agreement which will be considered as a whole.
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IN WITNESS WHEREOF, Company and Shareholder have caused this Agreement to
be executed as of the Agreement Date first written above.
THE DII GROUP, INC. SHAREHOLDER
By: Name:
--------------------------------- ------------------------------
(Please Print)
Title: By:
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(Signature)
Title:
-----------------------------
Number of Shares Owned:____________
Address:___________________________
___________________________
___________________________
Facsimile:(_____)__________________
[Signature Page to Parent Voting Agreement]
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EXHIBIT "1" TO VOTING AGREEMENT
IRREVOCABLE PROXY
The undersigned shareholder of Flextronics International Ltd., a Singapore
company (the "Parent"), hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes Ronald Budacz or Thomas Smach, and each of them,
the attorneys and proxies of the undersigned, with full power of substitution
and resubstitution, to the fullest extent of the undersigned's rights with
respect to (i) the shares of capital stock of Parent owned by the undersigned as
of the date of this proxy, which shares are specified on the final page of this
proxy and (ii) any and all other shares of capital stock of Parent which the
undersigned may acquire after the date hereof. (The shares of the capital stock
of Parent referred to in clauses (i) and (ii) of the immediately preceding
sentence are collectively referred to as the "Shares"). Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
Shares (other than any proxies granted to Company) are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with that certain Parent Voting Agreement, dated as of the date
hereof, between The DII Group, Inc., a Delaware corporation ("Company"), and the
undersigned (the "Voting Agreement"), and is granted in consideration of Company
entering into the Agreement and Plan of Merger, dated as of November 22, 1999,
among Parent, Slalom Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent, and Company ("Merger Agreement"). Capitalized terms used
but not otherwise defined in this proxy have the meanings ascribed to such terms
in the Merger Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the Expiration Date (as defined
in the Voting Agreement) at any meeting of the shareholders of Parent, however
called, or in any action by written consent of shareholders of Parent:
(i) in favor of the Merger, the execution and delivery by Company of
the Merger Agreement and the adoption and approval of the terms thereof and
in favor of each of the other actions and transactions contemplated by the
Merger Agreement and any action required in furtherance hereof and thereof;
and
(ii) in favor of the waiver (by amendment of any such agreement or
otherwise), effective as of immediately prior to the effectiveness of the
Merger, of any rights of first refusal, rights of first offer, rights of
notice, rights of co-sale, tag-along rights, information rights,
registration rights, preemptive rights, rights of redemption or repurchase,
or similar rights of Shareholder under any agreement, arrangement or
understanding applicable to the Subject Shares, to the extent that the same
may apply to the Merger or any other actions or transactions contemplated
by the Merger Agreement.
The undersigned shareholder may vote the Shares on all other matters not
described in the foregoing subparagraph (i) and (ii) above.
Prior to the Expiration Date (as such term is defined in the Voting
Agreement), at any meeting of the shareholders of Parent, however called, and in
any action by written consent of shareholders of Parent, the attorneys and
proxies named above may, in their sole discretion, elect to abstain from voting
on any matter covered by the foregoing subparagraphs (i) and (ii) above.
This proxy and any obligation of the undersigned hereunder shall be binding
upon the heirs, successors and assigns of the undersigned (including any
transferee of any of the Shares).
This proxy shall terminate upon the Expiration Date (as defined in the
Voting Agreement).
Dated: November ___, 1999
Name:
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By:
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Title (If Applicable):_________________
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