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EXHIBIT 4.1
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STOCKHOLDERS AGREEMENT
among
SMTC Corporation
and
The Stockholders referred to herein
Dated as of July 27, 2000
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TABLE OF CONTENTS
Page
1. EFFECTIVENESS; DEFINITIONS............................ 2
1.1. Effectiveness.................................. 2
1.2. Definitions.................................... 2
2. [RESERVED]............................................ 2
3. [RESERVED]............................................ 2
4. [RESERVED]............................................ 2
5. [RESERVED]............................................ 2
6. REGISTRATION RIGHTS................................... 2
6.1. Majority Investor Demand Registration Rights... 3
6.1.1. General................................ 3
6.1.2. Payment of Expenses.................... 4
6.1.3. Additional Procedures.................. 4
6.2. Investors' Demand Registration Rights.......... 4
6.2.1. General................................ 4
6.2.2. Payment of Expenses.................... 5
6.2.3. Additional Procedures.................. 5
6.3. Piggyback Registration Rights.................. 6
6.3.1. Piggyback Registration................. 6
6.3.2. Payment of Expenses.................... 7
6.3.3. Additional Procedures.................. 7
6.4. Certain Other Provisions....................... 7
6.4.1. Underwriter's Cutback.................. 7
6.4.2. Other Actions.......................... 8
6.4.3. Selection of Underwriters and Counsel.. 9
6.4.4. Lock-Up................................ 9
6.5. Indemnification and Contribution............... 9
6.5.1. Indemnities of the Company............. 9
6.5.2. Indemnities to the Company............. 11
6.5.3. Contribution........................... 11
6.5.4. Limitation on Liability of Holders of
Registrable Securities................. 12
7. TRANSFERS TO OTHER HOLDERS............................ 12
8. REMEDIES.............................................. 12
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8.1. Generally...................................... 12
8.2. [RESERVED]..................................... 12
9. LEGENDS............................................... 12
9.1. [RESERVED]..................................... 12
9.2. 1933 Act Legends............................... 12
9.3. Stop Transfer Instruction...................... 13
9.4. Termination of 1933 Act Legend................. 13
10. [RESERVED]............................................ 13
11. AMENDMENT, TERMINATION, ETC........................... 13
11.1. Oral Modifications............................. 13
11.2. Written Modifications.......................... 13
11.3. Termination.................................... 14
12. DEFINITIONS........................................... 14
12.1. Certain Matters of Construction................ 14
12.2. Definitions.................................... 14
13. MISCELLANEOUS......................................... 19
13.1. Expenses of EMSIcon Transfers.................. 19
13.2. Authority; Effect.............................. 20
13.3. Notices........................................ 20
13.4. Binding Effect, Etc............................ 21
13.5. Descriptive Headings........................... 22
13.6. Counterparts................................... 22
13.7. Severability................................... 22
14. GOVERNING LAW, ETC.................................... 22
14.1. Governing Law.................................. 22
14.2. Consent to Jurisdiction........................ 22
14.3. WAIVER OF JURY TRIAL........................... 23
14.4. Exercise of Rights and Remedies................ 23
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STOCKHOLDERS AGREEMENT
The Stockholders Agreement (the "1999 Agreement") made as of July 30, 1999
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by and among:
(i) SMTC Corporation (the "Company");
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(ii) SMTC Manufacturing Corporation of Canada (f/k/a The Surface Mount
Technology Centre, Inc.) ("SMTC-Canada");
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(iii) EMSIcon Investments ("EMSIcon"), LLC, Edward A. Johnson, James
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Holmes, J & E Enterprises, LLC, Allen & Company, Incorporated, Allen
Value Partners, L.P., Allen Value Limited, Celerity EMSIcon, LLC,
Bain Capital Fund VI, L.P., BCIP Associates II, BCIP Trust Associates
II, BCIP Associates II-B, BCIP Associates II-C, BCM Capital Partners,
L.P., Bain Capital V Mezzanine Fund, L.P., Sankaty High Yield Asset
Partners, L.P., General Electric Capital Corporation, RGIP, LLC, J&L
Investments, LLC ("J&L) and the members of Celerity EMSIcon, LLC
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listed on the signature pages thereto (collectively, the "HTM
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Investors");
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(iv) P.N. Walker Consulting Inc., Paul Walker, Nichal Inc., Derek
D'Andrade, Gary Walker, Philip Woodard and Kilmer Electronics Group
Limited (collectively, the "SMTC Investors"); and
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(v) Edward A. Johnson, James Laurion and each Person who, upon acquiring
Shares in connection with the exercise of Options granted by the
Company, became party hereto by executing a counterpart signature
page thereto (collectively, the "Managers"),
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is hereby amended and restated in its entirety pursuant to Section 11.2 of the
1999 Agreement by written agreement of the Majority Stockholders, the Majority
HTM Investors, the Majority SMTC Investors and the Majority Managers (as each
term is defined in the 1999 Agreement) in the form of this Stockholders
Agreement (1999 Agreement as amended and restated hereby is referred to herein
as the "Agreement") as of July 27, 2000 to read as follows:
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Recitals
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1. The Company (i) has filed a registration statement on Form S-1 with the
Commission, (ii) intends to effect an Initial Public Offering of New Common
Stock and Exchangeable Shares (each as defined below) and (iii) immediately
prior to the consummation of the Initial Public Offering, intends to (a)
purchase all outstanding Class N Stock from the holders thereof, (b) issue a
single share of special voting stock (the "Special Voting Stock"), (c) cause
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SMTC Nova
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Scotia to purchase all outstanding Class Y Canadian Shares in exchange
for Class L Stock (d) convert its Class L Stock into Class A Stock, (e)
thereafter convert its Class A stock into a new class of common stock, par value
$.01 (the "New Common Stock"), and (f) cause SMTC-Canada to convert the Class L
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Exchangeable Shares into exchangeable shares of SMTC-Canada (the "Exchangeable
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Shares") which are exchangeable for New Common Stock (the foregoing actions
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together the "Reclassification").
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2. Pursuant to the terms of a Stock Purchase Agreement dated May 23, 2000, the
Company intends to acquire the capital stock of Pensar Corporation, a Wisconsin
corporation ("Pensar") and, in connection with such acquisition, the Sellers (as
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defined in such Stock Purchase Agreement, and for purposes of this agreement the
"Pensar Investors") will acquire New Common Stock in consideration of their
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interests in the capital stock of Pensar.
3. The parties desire to amend and restate the 1999 Agreement on the date
hereof to establish the agreements on certain matters following the
Reclassification and the effectiveness of the Initial Public Offering.
4. It is a condition to the closing of the acquisition of Pensar that the
Pensar Investors execute a counterpart signature page to this Agreement as
"Pensar Investors."
Agreement
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Therefore, the parties hereto hereby agree as follows:
1. EFFECTIVENESS; DEFINITIONS.
1.1. Effectiveness. This Agreement shall become effective upon the closing
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of the Initial Public Offering.
1.2. Definitions. Certain terms are used in this Agreement as specifically
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defined herein. These definitions are set forth or referred to in Section 12
hereof.
2. [RESERVED].
3. [RESERVED].
4. [RESERVED].
5. [RESERVED].
6. REGISTRATION RIGHTS. The Company will perform and comply, and cause each
of its subsidiaries to perform and comply, with such of the following provisions
as are
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applicable to it. Each holder of Shares will perform and comply with
such of the following provisions as are applicable to such holder.
6.1. Majority Investor Demand Registration Rights.
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6.1.1. General. The Majority Stockholders (for purposes of this
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Section 6.1, "Initiating Investors"), by notice to the Company specifying
the intended method or methods of disposition, may request that the Company
effect the registration under the Securities Act for a Public Offering of
all or a specified part of the Registrable Securities (x) held by such
Initiating Investors or (y) issuable to such Initiating Investors upon
Conversion of any Exchangeable Shares held by such Initiating Investors.
The Company will then use its best efforts to effect the registration under
the Securities Act of the Registrable Securities which the Company has been
requested to register by such Initiating Investors together with all other
Registrable Securities which the Company has been requested to register
pursuant to Section 6.3 all to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities which the Company has been so requested to
register; provided, however, that the Company shall not be obligated to
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take any action to effect any such registration pursuant to this
Section 6.1.1:
(a) Within 180 days immediately following the effective date of
any registration statement pertaining to an underwritten public
offering of securities of the Company for its own account (other than
a Rule 145 Transaction, or a registration relating solely to employee
benefit plans); or
(b) On any form other than Form S-3 (or any successor form) if
the Company has previously effected three or more registrations of
Registrable Securities under this Section 6.1.1 on any form other
than Form S-3 (or any successor form); provided, however, that no
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registrations of Registrable Securities which shall not have become
and remained effective in accordance with the provisions of this
Section 6, and no registrations of Registrable Securities pursuant to
which the Initiating Investors are not able to include at least 90%
of the Registrable Securities which they desired to include, shall be
included in the calculation of numbers of registrations contemplated
by this clause (b).
6.1.1.1. Form. Except as otherwise provided above, each registration
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requested pursuant to this Section 6.1.1 shall be effected by the filing of
a registration statement on Form S-1 (or any other form which includes
substantially the same information as would be required to be included in a
registration statement on such form as currently constituted), unless the
use of a different form has been agreed to in writing by holders of at
least a majority of
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the Registrable Securities to be included in the proposed registration
statement in question by the Initiating Investors (the "Majority
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Participating Stockholders").
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6.1.2 Payment of Expenses. The Company shall pay all reasonable
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expenses of the Initiating Investors incurred in connection with each
registration of Registrable Securities requested pursuant to this Section
6.1, other than underwriting discount and commission, if any, and
applicable transfer taxes, if any.
6.1.3. Additional Procedures. In the case of a registration pursuant
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to Section 6.1, whenever the Majority Participating Stockholders shall
request that such registration shall be effected pursuant to an
underwritten offering, the Company shall include such information in the
written notices to holders of Registrable Securities and Convertible
Securities referred to in Section 6.3. In such event, the right of any
holder of Registrable Securities to have securities owned by such holder
included in such registration pursuant to Section 6.1 shall be conditioned
upon such holder's participation in such underwriting and the inclusion of
such holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed upon by the Majority Participating Stockholders and such
holder). If requested by such underwriters, the Company together with the
holders of Registrable Securities proposing to distribute their securities
through such underwriting will enter into an underwriting agreement with
such underwriters for such offering containing such representations and
warranties by the Company and such holders and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
customary indemnity and contribution provisions (subject, in each case, to
the limitations on such liabilities set forth in this Agreement).
6.2. Investors' Demand Registration Rights.
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6.2.1. General. From and after July 30, 2003, each of the Majority
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Bain Investors, the Majority Celerity Investors and the Majority SMTC
Investors, in each case, holding Shares that constitute at least 15% of the
Registrable Securities (for purposes of this Section 6.2, "Initiating
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Investors"), by notice to the Company specifying the intended method or
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methods of disposition, may request that the Company effect the
registration under the Securities Act for a Public Offering of all or a
specified part of the Registrable Securities (x) held by such Initiating
Investors or (y) issuable to such Initiating Investor upon Conversion of
any Exchangeable Shares held by such Initiating Investor. The Company will
then use its best efforts to effect the registration under the Securities
Act of the Registrable Securities which the Company has been requested to
register by such Initiating Investors together with all other Registrable
Securities which the Company has been requested to register pursuant to
Section 6.3 all to the extent requisite to permit the disposition (in
accordance with
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the intended methods thereof as aforesaid) of the Registrable Securities
which the Company has been so requested to register; provided, however,
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that the Company shall not be obligated to take any action to effect any
such registration pursuant to this Section 6.2.1:
(a) Within 180 days immediately following the effective
date of any registration statement pertaining to an
underwritten public offering of securities of the Company for
its own account (other than a Rule 145 Transaction, or a
registration relating solely to employee benefit plans); or
(b) On any form other than Form S-3 (or any successor
form) if the Company has previously effected three or more
registrations of Registrable Securities under this Section
6.2.1 on any form other than Form S-3 (or any successor
form); provided, however, that no registrations of
Registrable Securities which shall not have become and
remained effective in accordance with the provisions of this
Section 6, and no registrations of Registrable Securities
pursuant to which the Initiating Investors are not able to
include at least 90% of the Registrable Securities which they
desired to include, shall be included in the calculation of
numbers of registrations contemplated by this clause (b).
6.2.1.1. Form. Except as otherwise provided above, each
registration requested pursuant to this Section 6.2.1 shall be
effected by the filing of a registration statement on Form S-1 (or
any other form which includes substantially the same information as
would be required to be included in a registration statement on such
form as currently constituted), unless the use of a different form
has been agreed to in writing by holders of at least a majority of
the Registrable Securities to be included in the proposed
registration statement in question by the Initiating Investors (the
"Majority Participating Stockholders").
6.2.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of the Initiating Investors incurred in connection with each
registration of Registrable Securities requested pursuant to this Section
6.2, other than underwriting discount and commission, if any, and
applicable transfer taxes, if any.
6.2.3. Additional Procedures. In the case of a registration pursuant
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to Section 6.2, whenever the Majority Participating Stockholders shall
request that such registration shall be effected pursuant to an
underwritten offering, the Company shall include such information in the
written notices to holders of Registrable Securities and Convertible
Securities referred to in Section 6.3. In such event, the right of any
holder of Registrable Securities to have securities owned by such holder
included in such
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registration pursuant to Section 6.2 shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such
holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed upon by the Majority Participating Stockholders and such
holder). If requested by such underwriters, the Company together with the
holders of Registrable Securities proposing to distribute their securities
through such underwriting will enter into an underwriting agreement with
such underwriters for such offering containing such representations and
warranties by the Company and such holders and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
customary indemnity and contribution provisions (subject, in each case, to
the limitations on such liabilities set forth in this Agreement).
6.3. Piggyback Registration Rights.
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6.3.1. Piggyback Registration.
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6.3.1.1. General. Each time the Company proposes to register
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any shares of Common Stock under the Securities Act on a form which
would permit registration of Registrable Securities for sale to the
public, for its own account and/or for the account of any stockholder
(pursuant to Section 6.1, Section 6.2 or otherwise) for sale in a
Public Offering, the Company will give notice to all holders of
Registrable Securities and holders of Convertible Securities of its
intention to do so. Any such holder may, by written response
delivered to the Company within 20 days after the effectiveness of
such notice, request that all or a specified part of the Registrable
Securities (a) held by such holder or (b) issuable to such holder
upon Conversion of Exchangeable Shares held by such holder be
included in such registration. The Company thereupon will use its
reasonable efforts to cause to be included in such registration under
the Securities Act all shares of Common Stock which the Company has
been so requested to register by such holders, to the extent required
to permit the disposition (in accordance with the methods to be used
by the Company or other holders of shares of Common Stock in such
Public Offering) of the Registrable Securities to be so registered.
No registration of Registrable Securities effected under this Section
6.3 shall relieve the Company of any of its obligations to effect
registrations of Registrable Securities pursuant to Section 6.1 or
Section 6.2.
6.3.1.2. Excluded Transactions. The Company shall not be
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obligated to effect any registration of Registrable Securities under
this Section 6.3 incidental to the registration of any of its
securities in connection with:
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(a) Any Public Offering relating to employee benefit
plans or dividend reinvestment plans;
(b) Any Public Offering relating to the acquisition or
merger after the date hereof by the Company or any of its
subsidiaries of or with any other businesses; or
(c) The Initial Public Offering and the Qualified Public
Offering, unless such Public Offering has been initiated
pursuant to Section 6.1.1 or 6.2.1.
6.3.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of a single legal counsel representing any and all holders of
Registrable Securities incurred in connection with each registration of
Registrable Securities requested pursuant to this Section 6.3.
6.3.3. Additional Procedures. Holders of Shares participating in
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any Public Offering pursuant to this Section 6.3 shall take all such
actions and execute all such documents and instruments that are reasonably
requested by the Company to effect the sale of their Shares in such Public
Offering, including, without limitation, being parties to the underwriting
agreement entered into by the Company and any other selling shareholders in
connection therewith and being liable in respect of the representations and
warranties by, and the other agreements (including without limitation
customary selling stockholder representations, warranties, indemnifications
and "lock-up" agreements) for the benefit of the underwriters; provided,
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however, that (a) with respect to individual representations, warranties,
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indemnities and agreements of sellers of Shares in such Public Offering,
the aggregate amount of such liability shall not exceed such holder's net
proceeds from such offering and (b) to the extent selling stockholders give
further representations, warranties and indemnities, then with respect to
all other representations, warranties and indemnities of sellers of shares
in such Public Offering, the aggregate amount of such liability shall not
exceed the lesser of (i) such holder's pro rata portion of any such
liability, in accordance with such holder's portion of the total number of
Shares included in the offering or (ii) such holder's net proceeds from
such offering.
6.4. Certain Other Provisions.
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6.4.1. Underwriter's Cutback. In connection with any registration of
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shares, the underwriter may determine that marketing factors (including,
without limitation, an adverse effect on the per share offering price)
require a limitation of the number of shares to be underwritten.
Notwithstanding any contrary provision of this Section 6 and subject to the
terms of this Section 6.4.1, the underwriter may limit the number of shares
which would otherwise be included in such registration by excluding any or
all
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Registrable Securities from such registration (it being understood that
the number of shares which the Company seeks to have registered in such
registration shall not be subject to exclusion, in whole or in part, under
this Section 6.4.1). Upon receipt of notice from the underwriter of the
need to reduce the number of shares to be included in the registration, the
Company shall advise all holders of the Company's securities that would
otherwise be registered and underwritten pursuant hereto, and the number of
shares of such securities, including Registrable Securities, that may be
included in the registration shall be allocated in the following manner,
unless the underwriter shall determine that marketing factors require a
different allocation: shares, other than Registrable Securities, requested
to be included in such registration by shareholders shall be excluded to
the extent necessary to achieve the underwriter's cutback unless the
Company has, with the consent of the Majority Stockholders, granted
registration rights which are to be treated on an equal basis with
Registrable Securities for the purpose of the exercise of the underwriter
cutback; and, if a limitation on the number of shares is still required,
the number of Registrable Securities and other shares of Common Stock that
may be included in such registration shall be allocated among holders
thereof in proportion, as nearly as practicable, to the respective amounts
of Common Stock which each shareholder requested be registered in such
registration. For purposes of any underwriter cutback, all Common Stock
held by any holder of Registrable Securities which is a partnership or
corporation shall also include any Common Stock held by the partners,
retired partners, shareholders or affiliated entities of such holder, or
the estates and family members of any such partners and retired partners
and any trusts for the benefit of any of the foregoing persons, and such
holder and other persons shall be deemed to be a single selling holder, and
any pro rata reduction with respect to such selling holder shall be based
upon the aggregate amount of Common Stock owned by all entities and
individuals included in such selling holder, as defined in this sentence.
No securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any holder
of Registrable Securities disapproves of the terms of the underwriting, it
may elect to withdraw therefrom by written notice to the Company and the
underwriter. The Registrable Securities so withdrawn shall also be
withdrawn from registration.
6.4.2. Other Actions. If and in each case when the Company is
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required to use its best efforts to effect a registration of any
Registrable Securities as provided in this Section 6, the Company shall
take appropriate and customary actions in furtherance thereof, including,
without limitation: (a) promptly filing with the Commission a registration
statement and using reasonable efforts to cause such registration statement
to become effective, (b) preparing and filing with the Commission such
amendments and supplements to such registration statements as may be
required to comply with the Securities Act and to keep such registration
statement effective for a period not to exceed 270 days from the date of
effectiveness or such earlier time as the Registrable Securities covered by
such registration statement shall have been disposed of in accordance with
the intended method of distribution therefor or the expiration of the
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time when a prospectus relating to such registration is required to be
delivered under the Securities Act, (c) use its best efforts to register or
qualify such Registrable Securities under the state securities or "blue
sky" laws of such jurisdictions as the sellers shall reasonably request;
provided, however, that the Company shall not be obligated to file any
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general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it would not otherwise be so subject and (d) otherwise cooperate
reasonably with, and take such customary actions as may reasonably be
requested by the holders of Registrable Securities in connection with, such
registration.
6.4.3. Selection of Underwriters and Counsel. The underwriters and
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legal counsel to be retained in connection with any Public Offering shall
be selected by the Board or, in the case of an offering following a request
therefor under Section 6.1, the Initiating Investors.
6.4.4. Lock-Up. Without the prior written consent of the
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underwriters managing any Public Offering, for a period beginning seven
days immediately preceding and ending on the 90th day (or, in the case of
the Initial Public Offering, the 180th day) following the effective date of
the registration statement used in connection with such offering, no holder
of Shares (whether or not a selling shareholder pursuant to such
registration statement) shall (a) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
Transfer, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for such Common
Stock or (b) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership
of Common Stock, whether any such transaction described in clause (a) or
(b) above is to be settled by delivery of such Common Stock or such other
securities, in cash or otherwise; provided, however, that the foregoing
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restrictions shall not apply to (i) transactions relating to shares of
Common Stock or other securities acquired in open market transactions after
the completion of the Initial Public Offering, (ii) Transfers to a
Permitted Transferee of such holder or (iii) Conversions of Exchangeable
Shares or conversions or exchanges of shares of Common Stock into other
classes of Common Stock, in either case without change of holder, or (iv)
transfers of Common Stock to any of the Pensar Investors, the Company or
its affiliates pursuant to the Escrow Agreement dated on or about the date
hereof among the Company, the Pensar Investors and Brown Brothers Harriman
& Co., as Escrow Agent.
6.5. Indemnification and Contribution.
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6.5.1. Indemnities of the Company. In the event of any registration
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of any Registrable Securities or other debt or equity securities of the
Company or any of its
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subsidiaries under the Securities Act pursuant to this Section 6 or
otherwise, and in connection with any registration statement or any other
disclosure document produced by or on behalf of the Company or any of its
subsidiaries including, without limitation, reports required and other
documents filed under the Exchange Act, and other documents pursuant to
which any debt or equity securities of the Company or any of its
subsidiaries are sold (whether or not for the account of the Company or its
subsidiaries), the Company will, and hereby does, and will cause each of
its subsidiaries, jointly and severally, to indemnify and hold harmless
each seller of Registrable Securities, any Person who is or might be deemed
to be a controlling Person of the Company or any of its subsidiaries within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, their respective direct and indirect partners, advisory board
members, directors, officers, trustees, members and shareholders, and each
other Person, if any, who controls any such seller or any such holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being referred to herein as a "Covered
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Person"), against any losses, claims, damages or liabilities (or actions or
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proceedings in respect thereof), joint or several, to which such Covered
Person may be or become subject under the Securities Act, the Exchange Act,
any other securities or other law of any jurisdiction, the common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon
(a) any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in any registration statement under
the Securities Act, any preliminary prospectus or final prospectus included
therein, or any related summary prospectus, or any amendment or supplement
thereto, or any document incorporated by reference therein, or any other
such disclosure document (including without limitation reports and other
documents filed under the Exchange Act and any document incorporated by
reference therein) or other document or report, (b) 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 or (c) any
violation or alleged violation by the Company or any of its subsidiaries of
any federal, state, foreign or common law rule or regulation applicable to
the Company or any of its subsidiaries and relating to action or inaction
in connection with any such registration, disclosure document or other
document or report, and will reimburse such Covered Person for any legal or
any other expenses incurred by it in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that neither the Company nor any of its subsidiaries
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shall be liable to any Covered Person in any such case to the extent that
any such loss, claim, damage, liability, action or proceeding arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement, incorporated document or other such disclosure document or
other document or report, in reliance upon and in conformity with written
information furnished to the Company or to any of its subsidiaries through
an instrument duly
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executed by such Covered Person specifically stating that it is for use in
the preparation thereof. The indemnities of the Company and of its
subsidiaries contained in this Section 6.5.1 shall remain in full force and
effect regardless of any investigation made by or on behalf of such Covered
Person and shall survive any transfer of securities.
6.5.2. Indemnities to the Company. The Company and any of its
--------------------------
subsidiaries may require, as a condition to including any securities in any
registration statement filed pursuant to this Section 6, that the Company
and any of its subsidiaries shall have received an undertaking satisfactory
to it from the prospective seller of such securities, to indemnify and hold
harmless the Company and any of its subsidiaries, each director of the
Company or any of its subsidiaries, each officer of the Company or any of
its subsidiaries who shall sign such registration statement and each other
Person (other than such seller), if any, who controls the Company and any
of its subsidiaries within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act and each other prospective seller of such
securities with respect to any statement in or omission from such
registration statement, any preliminary prospectus, final prospectus or
summary prospectus included therein, or any amendment or supplement
thereto, or any other disclosure document (including, without limitation,
reports and other documents filed under the Exchange Act or any document
incorporated therein) or other document or report, if such statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company or any of its subsidiaries through an
instrument executed by such seller specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement, incorporated
document or other document or report. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
the Company, any of its subsidiaries or any such director, officer or
controlling Person and shall survive any transfer of securities.
6.5.3. Contribution. If the indemnification provided for in Sections
------------
6.5.1 or 6.5.2 is unavailable to a party that would have been entitled to
indemnification pursuant to the foregoing provisions of this Section 6.5
(an "Indemnitee") in respect of any losses, claims, damages or liabilities
----------
(or actions or proceedings in respect thereof) referred to therein, then
each party that would have been an indemnifying party thereunder shall, in
lieu of indemnifying such Indemnitee, contribute to the amount paid or
payable by such Indemnitee as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of such
indemnifying party on the one hand and such Indemnitee on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof). The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by such
-11-
<PAGE>
indemnifying party or such Indemnitee and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties agree that it would not be just or
equitable if contribution pursuant to this Section 6.5.3 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 preceding
sentence. The amount paid or payable by a contributing party as a result of
the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 6.5.3 shall include any
legal or other expenses reasonably incurred by such Indemnitee in
connection with investigating or defending any such action or claim. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
6.5.4. Limitation on Liability of Holders of Registrable Securities.
------------------------------------------------------------
The liability of each holder of Registrable Securities in respect of any
indemnification or contribution obligation of such holder arising under
this Section 6.5 shall not in any event exceed an amount equal to the net
proceeds to such holder (after deduction of all underwriters' discounts and
commissions) from the disposition of the Registrable Securities disposed of
by such holder pursuant to such registration.
7. TRANSFERS TO OTHER HOLDERS. Shares Transferred by a holder of Shares to
another holder of shares under this Agreement shall be deemed for all purposes
hereof to be HTM Shares, SMTC Shares, Pensar Shares, or the Management Shares
hereunder, of like kind with the other Shares held by the acquiring holder.
8. REMEDIES.
8.1. Generally. To the extent permitted by applicable law, the Company and
---------
each holder of Shares shall have all remedies at law, in equity or otherwise in
the event of any breach or violation of this Agreement or any default hereunder
by the Company or any holder of Shares. The parties acknowledge and agree that
in the event of any breach of this Agreement, in addition to any other remedies
which may be available, each of the parties hereto shall be entitled to specific
performance of the obligations of the other parties hereto and, in addition, to
such other equitable remedies (including, without limitation, preliminary or
temporary relief) as may be appropriate in the circumstances.
8.2. [RESERVED].
9. LEGENDS.
9.1. [RESERVED].
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<PAGE>
9.2. 1933 Act Legends. Each certificate representing Shares shall have the
----------------
following legend endorsed conspicuously thereupon:
The securities represented by this certificate were issued in a
private placement, without registration under the Securities Act of 1933,
as amended (the "Act"), and may not be sold, assigned, pledged or otherwise
---
transferred in the absence of an effective registration under the Act
covering the transfer or an opinion of counsel, satisfactory to the issuer,
that registration under the Act is not required.
9.3. Stop Transfer Instruction. The Company will instruct any transfer
-------------------------
agent not to register the Transfer of any Shares until the conditions specified
in the foregoing legends are satisfied.
9.4. Termination of 1933 Act Legend. The requirement imposed by Section
------------------------------
9.2 shall cease and terminate as to any particular Shares (a) when, in the
opinion of Ropes & Gray, or other counsel reasonably acceptable to the Company,
such legend is no longer required in order to assure compliance by the Company
with the Securities Act or (b) when such Shares have been effectively registered
under the Securities Act or transferred pursuant to Rule 144. Wherever (x) such
requirement shall cease and terminate as to any Shares or (y) such Shares shall
be transferable under paragraph (k) of Rule 144, the holder thereof shall be
entitled to receive from the Company, without expense, new certificates not
bearing the legend set forth in Section 9.2.
10. [RESERVED].
11. AMENDMENT, TERMINATION, ETC.
11.1. Oral Modifications. This Agreement may not be orally amended,
------------------
modified, extended or terminated, nor shall any oral waiver of any of its terms
be effective.
11.2. Written Modifications. This Agreement may be amended, modified,
---------------------
extended or terminated, and the provisions hereof may be waived, only by an
agreement in writing signed by the Majority Stockholders; provided, however,
-------- -------
that (a) the consent of the Majority HTM Investors shall be required for any
amendment, modification, extension, termination or waiver which has a material
adverse effect on the rights of the holders of HTM Shares as such under this
Agreement, (b) the consent of the Majority SMTC Investors shall be required for
any amendment, modification, extension, termination or waiver which has a
material adverse effect on the rights of the holders of SMTC Shares as such
under this Agreement, (c) the consent of the Majority Pensar Investors shall be
required for any amendment, modification, extension, termination or waiver which
has a material adverse effect on the rights of the holders of Pensar Shares as
such under this Agreement and (d) the consent of the Majority Managers shall be
required for any amendment, modification, extension, termination or waiver
-13-
<PAGE>
which has a material adverse effect on the rights of the holders of Management
Shares as such under this Agreement. Each such amendment, modification,
extension, termination and waiver shall be binding upon each party hereto and
each holder of Shares subject hereto. In addition, each party hereto and each
holder of Shares subject hereto may waive any right hereunder by an instrument
in writing signed by such party or holder.
11.3. Termination. No termination under this Agreement shall relieve any
-----------
Person of liability for breach prior to termination.
12. DEFINITIONS. For purposes of this Agreement:
12.1. Certain Matters of Construction. In addition to the definitions
-------------------------------
referred to or set forth below in this Section 12:
(a) The words "hereof", "herein", "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any particular
Section or provision of this Agreement, and, unless otherwise provided,
reference to a particular Section shall refer to the applicable Section of
this Agreement and shall include all subsections thereof;
(b) Definitions shall be equally applicable to both nouns and verbs
and the singular and plural forms of the terms defined; and
(c) The masculine, feminine and neuter genders shall each include the
other.
12.2. Definitions. The following terms shall have the following meanings:
-----------
"Agreement" shall have the meaning set forth in the Preamble.
---------
"Bain Equity Funds" shall mean, collectively, Bain Capital Fund VI, L.P.,
-----------------
BCIP Associates II, BCIP Trust Associates II, BCIP Associates II-B and BCIP
Associates II-C.
"Bain Investors" shall mean, collectively, Bain Capital Fund VI, L.P., BCIP
--------------
Associates II, BCIP Trust Associates II, BCIP Associates II-B, BCIP Associates
II-C, Bain Capital V Mezzanine Fund, L.P., BCM Capital Partners, L.P., Sankaty
High Yield Asset Partners, L.P.
The "Beneficial Owner" of any Share shall be the owner of such Share and,
----------------
in the case of any Share owned by EMSIcon, the owner of the membership unit of
EMSIcon corresponding to such Share. The terms "Beneficial Ownership" and
--------------------
"Beneficially Owned" shall have a corresponding meaning.
-------------------
"Celerity Investor" shall mean Celerity EMSIcon, LLC.
-----------------
-14-
<PAGE>
"Class A Stock" shall mean the Company's Class A-1 Common Stock together
-------------
with the Class A-2 Common Stock.
"Class A-1 Stock" shall mean the Company's Class A-1 Common Stock, par
---------------
value $.001 per share.
"Class A-2 Stock" shall mean the Company's Class A-2 Common Stock, par
---------------
value $.001 per share.
"Class L Exchangeable Shares" shall mean SMTC-Canada's Class L non-voting
---------------------------
preferred shares.
"Class L Stock" shall mean the Company's Class L Common Stock, par value
-------------
$.001 per share.
"Class N Stock" shall mean the Company's Class N Common Stock, par value
-------------
$.001 per share.
"Class Y Canadian Shares" shall mean SMTC-Canada's Class Y non-voting
-----------------------
preferred shares.
"Commission" shall mean the Securities and Exchange Commission.
----------
"Common Stock" shall mean the common stock of the Company including without
------------
limitation the Class A Stock, the Class L Stock and the New Common Stock.
"Company" shall have the meaning set forth in the Preamble.
-------
"Conversion" shall mean the Transfer of an Exchangeable Share to the
----------
Company or one of its subsidiaries in consideration of the receipt of Common
Stock whether pursuant to the Articles of Incorporation (as amended from time to
time) of SMTC-Canada, any agreement relating generally to the conversion of
Exchangeable Shares or otherwise, and "Convert" shall have a similar meaning.
"Convertible Securities" shall mean any evidence of indebtedness, shares of
----------------------
stock (other than Common Stock) or other securities which are directly or
indirectly convertible into or exchangeable or exercisable for shares of Common
Stock, including without limitation the Exchangeable Shares.
"Covered Person" shall have the meaning set forth in Section 6.5.1.
--------------
"EMSIcon" shall have the meaning set forth in the Preamble.
-------
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<PAGE>
"Equivalent Shares" shall mean as to any outstanding shares of Common
-----------------
Stock, such number of shares of Common Stock, and as to any outstanding Options
or Convertible Securities, the maximum number of shares of Common Stock for
which or into which such Options or Convertible Securities may at the time be
exercised, exchanged or converted.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as in effect
------------
from time to time.
"Exchangeable Shares" shall have the meaning set forth in the Recitals.
-------------------
"HTM" shall have the meaning set forth in the Recitals.
---
"HTM Investors" shall have the meaning set forth in the Preamble.
-------------
"HTM Shares" shall mean (a) all shares of Common Stock originally issued
----------
to, or issued with respect to shares originally issued to, or held by, an HTM
Investor, whenever issued, including, without limitation, all shares of Common
Stock issued pursuant to the exercise of any Convertible Securities and (b) all
Convertible Securities originally granted or issued to an HTM Investor. As to
any particular HTM Shares, such shares shall cease to be HTM Shares when (w) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (x) such securities
shall have been Transferred pursuant to Rule 144 or Rule 701, (y) subject to the
provisions of Section 9, such securities shall have been otherwise transferred,
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of them
shall not require registration of them under the Securities Act and such
securities may be distributed without volume limitation or other restrictions on
transfer under Rule 144 (including without application of paragraphs (c), (e),
(f) and (h) of Rule 144) or (z) such securities shall have ceased to be
outstanding. Except as otherwise provided in this Agreement, Convertible
Securities shall be treated as a number of Shares equal to the number of
Equivalent Shares represented by such Convertible Securities in all cases where
it is necessary to calculate the number of Shares held by any holder of HTM
Shares.
"Indemnitee" shall have the meaning set forth in Section 6.5.3.
----------
"Initial Public Offering" means the initial Public Offering registered on
-----------------------
Form S-1 (or any successor form under the Securities Act).
"Initiating Investors" shall have the meaning set forth in Sections 6.1.1,
--------------------
6.2.1.1 and 6.2.1.2.
"J&L" shall have the meaning set forth in the Preamble.
---
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<PAGE>
"Majority Bain Investors" shall mean, as of any date, the holders of a
-----------------------
majority of the Shares then Beneficially Owned by the Bain Investors.
"Majority Celerity Investors" shall mean, as of any date, the holders of a
---------------------------
majority of the Shares then Beneficially Owned by the Celerity Investor.
"Majority HTM Investors" shall mean, as of any date, the holders of a
----------------------
majority of the HTM Shares outstanding on such date.
"Majority Managers" shall mean, as of any date, the holders of a majority
-----------------
of the Management Shares outstanding on such date.
"Majority Participating Stockholders" shall have the meaning set forth in
-----------------------------------
Section 6.2.1.1 and 6.2.1.4.
"Majority SMTC Investors" shall mean, as of any date, the holders of a
-----------------------
majority of the SMTC Shares outstanding on such date.
"Majority Stockholders" shall mean, as of any date, the holders of a
---------------------
majority of the Shares outstanding on such date.
"Management Shares" shall mean (a) all shares of Common Stock originally
-----------------
issued to, or issued with respect to shares originally issued to, or held by, a
Manager, whenever issued, including, without limitation, all shares of Common
Stock issued pursuant to the exercise of any Convertible Securities and (b) all
Convertible Securities originally granted or issued to a Manager. As to any
particular Management Shares, such shares shall cease to be Management Shares
when (w) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (x) such
securities shall have been Transferred pursuant to Rule 144 or Rule 701, (y)
subject to the provisions of Section 9, such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration of them under the
Securities Act and such securities may be distributed without volume limitation
or other restrictions on transfer under Rule 144 (including without application
of paragraphs (c), (e), (f) and (h) of Rule 144) or (z) such securities shall
have ceased to be outstanding. Except as otherwise provided in this Agreement,
Convertible Securities shall be treated as a number of Shares equal to the
number of Equivalent Shares represented by such Convertible Securities in all
cases where it is necessary to calculate the number of Shares held by any holder
of Management Shares.
"Managers" shall have the meaning set forth in the Preamble.
--------
"New Common Stock" shall have the meaning set forth in the Recitals.
----------------
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<PAGE>
"Options" shall mean Convertible Securities in the form of options or
-------
warrants to subscribe for, purchase or otherwise acquire either Common Stock or
other Convertible Securities.
"Pensar" shall have the meaning set forth in the Recitals.
------
"Pensar Investors" shall have the meaning set forth in the Recitals.
----------------
"Pensar Shares" shall mean (a) all shares of Common Stock originally issued
-------------
to, or issued with respect to shares originally issued to, or held by, a Pensar
Investor, whenever issued, including, without limitation, all shares of Common
Stock issued pursuant to the exercise of any Convertible Securities and (b) all
Convertible Securities originally granted or issued to a Pensar Investor. As to
any particular Pensar Shares, such shares shall cease to be Pensar Shares when
(w) a registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement, (x) such
securities shall have been Transferred pursuant to Rule 144 or Rule 701, (y)
subject to the provisions of Section 9, such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration of them under the
Securities Act and such securities may be distributed without volume limitation
or other restrictions on transfer under Rule 144 (including without application
of paragraphs (c), (e), (f) and (h) of Rule 144) or (z) such securities shall
have ceased to be outstanding. Except as otherwise provided in this Agreement,
Convertible Securities shall be treated as a number of Shares equal to the
number of Equivalent Shares represented by such Convertible Securities in all
cases where it is necessary to calculate the number of Shares held by any holder
of Pensar Shares.
"Permitted Transferee" shall mean (a) with respect to any holder of Shares
--------------------
who is a natural Person, each spouse or child or other descendants of such
holder, each trust created solely for the benefit of one or more of the
aforementioned Persons and their spouses and each custodian or guardian of any
property of one or more of the aforementioned Persons in his capacity as such
custodian or guardian (each such Person set forth in this clause (a), a "Member
------
of the Immediate Family"), (b) with respect to Shares held by a natural Person
-----------------------
and distributed by will or other instrument taking effect at death of such
holder or by applicable laws of descent and distribution, such holder's estate,
executors, administrators, personal representatives, heirs, legatees or
distributees whether or not such recipients are Members of the Immediate Family
of such holder and (c) with respect to any holder of Shares, an Affiliate of
such holder or the holders of the beneficial interests (which, for purposes of
this clause (c), shall be deemed to include, without limitation, its partners,
members or stockholders) of such holder; provided, however, that no Transferee
-------- -------
pursuant to the above clauses (a), (b) or (c) shall be a "Permitted Transferee"
unless such Transferee has delivered to the Company a written acknowledgment and
agreement in form and substance reasonably satisfactory to the Company that such
Shares to be received by such Transferee shall remain HTM Shares, SMTC
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<PAGE>
Shares or Management Shares hereunder, as the case may be, and shall continue to
be subject to all of the provisions of this Agreement and that such Transferee
shall be bound by, and shall be a party to, this Agreement as the holder of HTM
Shares, SMTC Shares or Management Shares, as the case may be; provided, further,
-------- -------
that no Transfer by any party to a Permitted Transferee shall relieve such party
of any of its obligations hereunder.
"Person" shall mean any individual, partnership, corporation, company,
------
association, trust, joint venture, unincorporated organization, entity or
division, or any government, governmental department or agency or political
subdivision thereof.
"Public Offering" shall mean a public offering and sale of Common Stock for
---------------
cash pursuant to an effective registration statement under the Securities Act.
"Qualified Public Offering" shall mean a Public Offering, other than any
-------------------------
Public Offering or sale pursuant to a registration statement on Form S-8 or
comparable form, in which the aggregate price to the public of all such common
stock sold in such offering shall exceed $55 million.
"Reclassification" shall have the meaning set forth in the Recitals.
----------------
"Registrable Securities" shall mean (a) all shares of Common Stock, (b) all
----------------------
shares of Common Stock issuable upon exercise of any Convertible Security and
(c) all shares of Common Stock directly or indirectly issued or issuable with
respect to the securities referred to in clauses (a) or (b) above by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, in each case
constituting Shares. As to any particular Registrable Securities, such shares
shall cease to be Registrable Securities when (w) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (x) such securities shall have been
Transferred pursuant to Rule 144 or Rule 701, (y) subject to the provisions of
Section 9, such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of them shall not
require registration of them under the Securities Act and such securities may be
distributed without volume limitation or other restrictions on transfer under
Rule 144 (including without application of paragraphs (c), (e), (f) and (h) of
Rule 144) or (z) such securities shall have ceased to be outstanding.
"Rule 144" shall mean Rule 144 under the Securities Act (or any successor
--------
Rule).
"Rule 145 Transaction" shall mean a registration on Form S-4 pursuant to
--------------------
Rule 145 of the Securities Act (or any successor Form or provision, as
applicable).
"Rule 701" shall mean Rule 701 under the Securities Act (or any successor
--------
Rule).
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<PAGE>
"Sale" shall mean any Transfer for value.
----
"Securities Act" shall mean the Securities Act of 1933, as in effect from
--------------
time to time.
"Shares" shall mean all HTM Shares, SMTC Shares, Pensar Shares and
------
Management Shares.
"SMTC" shall have the meaning set forth in the Recitals.
----
"SMTC - Canada" shall have the meaning set forth in the Preamble.
-------------
"SMTC Investors" shall have the meaning set forth in the Preamble.
--------------
"SMTC Nova Scotia" shall mean SMTC Nova Scotia Company.
----------------
"SMTC Shares" shall mean (a) all shares of Common Stock originally issued
-----------
to, or issued with respect to shares originally issued to, or held by, an SMTC
Investor, whenever issued, including, without limitation, all shares of Common
Stock issued pursuant to the exercise of any Convertible Securities and (b) all
Convertible Securities originally granted or issued to an SMTC Investor. As to
any particular SMTC Shares, such shares shall cease to be SMTC Shares when (w) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (x) such securities
shall have been Transferred pursuant to Rule 144 or Rule 701, (y) subject to the
provisions of Section 9, such securities shall have been otherwise transferred,
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of them
shall not require registration of them under the Securities Act and such
securities may be distributed without volume limitation or other restrictions on
transfer under Rule 144 (including without application of paragraphs (c), (e),
(f) and (h) of Rule 144) or (z) such securities shall have ceased to be
outstanding. Except as otherwise provided in this Agreement, Convertible
Securities shall be treated as a number of Shares equal to the number of
Equivalent Shares represented by such Convertible Securities in all cases where
it is necessary to calculate the number of Shares held by any holder of SMTC
Shares.
"Special Voting Stock" shall have the meaning set forth in the Recitals.
--------------------
"Stockholders" shall mean the HTM Investors, the SMTC Investors, the
------------
Managers and the Pensar Investors.
"Transfer" shall mean any sale, pledge, assignment, encumbrance or other
--------
transfer or disposition of any Shares to any other Person, whether directly,
indirectly, voluntarily, involuntarily, by operation of law, pursuant to
judicial process or otherwise.
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<PAGE>
13. MISCELLANEOUS.
13.1. Expenses of EMSIcon Transfers. In connection with any Transfer of
-----------------------------
Shares by EMSIcon to the Beneficial Owner of such Shares, the Company will pay,
or cause one of its subsidiaries to pay, on behalf of EMSIcon or any such
Beneficial Owner, all fees payable to governmental authorities relating to
securities regulation and anti-trust enforcement in connection with, or
resulting from, such Transfer.
13.2. Authority; Effect. Each party hereto represents and warrants to and
-----------------
agrees with each other party that the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized on behalf of such party and do not violate any agreement or other
instrument applicable to such party or by which its assets are bound. This
Agreement does not, and shall not be construed to, give rise to the creation of
a partnership among any of the parties hereto, or to constitute any of such
parties members of a joint venture or other association.
13.3. Notices. Any notices and other communications required or permitted
-------
in this Agreement shall be effective if in writing and (a) delivered personally
or (b) sent (i) by Federal Express, DHL or UPS or (ii) by registered or
certified mail, postage prepaid, in each case, addressed as follows:
If to the Company to it:
c/o EMSIcon
with a copy to:
SMTC Manufacturing Corporation of Canada
625 Hood Road
Markham, Ontario L3R 4N6
Canada
Attention: President
If to EMSIcon, to it:
c/o Bain Capital, Inc.
Two Copley Place, 7th Floor
Boston, MA 02116
Attention: Stephen G. Pagliuca
Ian K. Loring
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<PAGE>
with copies to:
Celerity Management Co., Inc.
11111 Santa Monica Boulevard, Suite 1127
Los Angeles, CA 90025
Attention: Stephen E. Adamson
and
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: Alfred O. Rose, Esq.
and
Brownstein, Hyatt & Farber, P.C.
410 Seventeenth Street
22nd Floor
Denver, CO 80202-4437
Attention: Jacquelyn Kilmer, Esq.
If to any other holder of Shares, to him at the address set forth in the
stock record book of the Company.
Notice to the holder of record of any shares of capital stock shall be
deemed to be notice to the holder of such shares for all purposes hereof.
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date received, if personally delivered, (b)
two business days after being sent by Federal Express, DHL or UPS and (c) three
business days after deposit with the U.S. Postal Service, if sent by registered
or certified mail. Each of the parties hereto shall be entitled to specify a
different address by giving notice as aforesaid to each of the other parties
hereto.
13.4. Binding Effect, Etc. Except for restrictions on Transfer of Shares
-------------------
set forth in other agreements, plans or other documents, this Agreement
constitutes the entire agreement of the parties with respect to its subject
matter, supersedes all prior or contemporaneous oral or written agreements or
discussions with respect to such subject matter, and shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns. Upon execution by any party, this
Agreement shall become a valid and binding obligation of such party
notwithstanding the failure of any Stockholder to execute this Agreement.
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<PAGE>
13.5. Descriptive Headings. The descriptive headings of this Agreement
--------------------
are for convenience of reference only, are not to be considered a part hereof
and shall not be construed to define or limit any of the terms or provisions
hereof.
13.6. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
13.7. Severability. In the event that any provision hereof would, under
------------
applicable law, be invalid or unenforceable in any respect, such provision shall
be construed by modifying or limiting it so as to be valid and enforceable to
the maximum extent compatible with, and possible under, applicable law. The
provisions hereof are severable, and in the event any provision hereof should be
held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
14. GOVERNING LAW, ETC.
14.1. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the domestic substantive laws of the State of Delaware without
giving effect to any choice or conflict of laws provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
14.2. Consent to Jurisdiction. Each party to this Agreement, by its
-----------------------
execution hereof, (a) hereby irrevocably submits to the exclusive jurisdiction
of the state courts of the United States District Court for the District of
Delaware for the purpose of any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out
of or based upon this Agreement or relating to the subject matter hereof, (b)
hereby waives to the extent not prohibited by applicable law, and agrees not to
assert, and agrees not to allow any of its subsidiaries to assert, by way of
motion, as a defense or otherwise, in any such action, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that any such
proceeding brought in one of the above-named courts is improper, or that this
Agreement or the subject matter hereof or thereof may not be enforced in or by
such court and (c) hereby agrees not to commence or maintain any action, claim,
cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or
investigation arising out of or based upon this Agreement or relating to the
subject matter hereof or thereof other than before one of the above-named courts
nor to make any motion or take any other action seeking or intending to cause
the transfer or removal of any such action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation to any court
other than one of the above-named courts whether on the grounds of inconvenient
forum or otherwise. Notwithstanding the foregoing, to the extent that any party
hereto is or becomes a party in any litigation in connection with which it may
assert indemnification rights set forth in this agreement, the court in which
such
-23-
<PAGE>
litigation is being heard shall be deemed to be included in clause (a) above.
Each party hereto hereby consents to service of process in any such proceeding
in any manner permitted by Delaware law, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified
pursuant to Section 13.3 is reasonably calculated to give actual notice.
14.3. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
--------------------
LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT
IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF
ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS
CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.
EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES
HERETO THAT THIS SECTION 14.3 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY
ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 14.3 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
14.4. Exercise of Rights and Remedies. No delay of or omission in the
-------------------------------
exercise of any right, power or remedy accruing to any party as a result of any
breach or default by any other party under this Agreement shall impair any such
right, power or remedy, nor shall it be construed as a waiver of or acquiescence
in any such breach or default, or of any similar breach or default occurring
later; nor shall any such delay, omission nor waiver of any single breach or
default be deemed a waiver of any other breach or default occurring before or
after that waiver.
-24-
<PAGE>
SMTC Corporation
Stockholders Agreement
July 27, 2000
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE COMPANY: SMTC Corporation
By /s/ Paul Walker
--------------------------------------
Name: Paul Walker
Title: President
THE STOCKHOLDERS: EMSIcon Investments, LLC
By /s/ Stephen Adamson
--------------------------------------
Name: Stephen Adamson
Title: Authorized Person
Bain Capital Fund VI, L.P.
By: Bain Capital Partners VI, L.P.,
its general partner
By: Bain Capital Investors VI, Inc.,
its general partner
By /s/ Paul Edgerley
--------------------------------------
Name: Paul Edgerley
Title:
Sankaty High Yield Asset Partners, L.P.
By /s/ Diane J. Exter
--------------------------------------
Name: Diane J. Exter
Title: Executive Vice President
<PAGE>
SMTC Corporation
Stockholders Agreement
July 27, 2000
Bain Capital V Mezzanine Fund, L.P.
By: Bain Capital V Mezzanine Partners, L.P.,
its general partner
By: Bain Capital Investors V, Inc.,
its general partner
By /s/ Paul Edgerley
--------------------------------------
Name: Paul Edgerley
Title:
BCM Capital Partners, L.P.
By: Bain Capital V Mezzanine Partners, L.P.
its general partner
By: Bain Capital Investors V, Inc.,
its general partner
`
By /s/ Paul Edgerley
--------------------------------------
Name: Paul Edgerley
Title:
BCIP Associates II
BCIP Trust Associates II
BCIP Associates II-B
BCIP Associates II-C
By: Bain Capital, Inc.,
their Managing Partner
By /s/ Paul Edgerley
--------------------------------------
Name: Paul Edgerley
Title:
Celerity EMSIcon, LLC
By /s/ Stephen Adamson
--------------------------------------
Name: Stephen Adamson
Title: An Authorized Person
<PAGE>
SMTC Corporation
Stockholders Agreement
July 27, 2000
P.N. Walker Consulting Inc.
By /s/ Paul Walker
--------------------------------------
Name: Paul Walker
Title:
Nichal Inc.
By /s/ Derek D'Andrade
--------------------------------------
Name: Derek D'Andrade
Title:
Kilmer Electronics Group Limited
By /s/ Michael Griffiths
--------------------------------------
Name: Michael Griffiths
Title: Secretary-Treasurer
/s/ Gary Walker
-----------------------------------------
Gary Walker
/s/ Philip Woodard
-----------------------------------------
Philip Woodard
/s/ Paul Walker
-----------------------------------------
Paul Walker
/s/ Derek D'Andrade
-----------------------------------------
Derek D'Andrade
/s/ Edward A. Johnson
-----------------------------------------
Edward A. Johnson
<PAGE>
SMTC Corporation
Stockholders Agreement
July 27, 2000
/s/ James Laurion
-----------------------------------------
James Laurion
/s/ Brad Tesch
-----------------------------------------
Brad Tesch
/s/ Robert Koss
-----------------------------------------
Robert Koss
THE PENSAR INVESTORS:
/s/ Stanley C. Plzak
-----------------------------------------
Stanley C. Plzak
/s/ William M. Moeller
-----------------------------------------
William M. Moeller
/s/ Richard V. Baxter
-----------------------------------------
Richard V. Baxter
/s/ David E. Steel
-----------------------------------------
David E. Steel
/s/ Bruce D. Backer
-----------------------------------------
Bruce D. Backer
