<PAGE> 1
As filed with the Securities and Exchange Commission on December 15, 1997
Registration No. 333-
--------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FLEXTRONICS INTERNATIONAL LTD.
(Exact Name of Registrant as Specified in Its Charter)
SINGAPORE NOT APPLICABLE
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
514 CHAI CHEE LANE #04-13, BEDOK INDUSTRIAL ESTATE, SINGAPORE 1646
(Address of Principal Executive Offices)
FLEXTRONICS INTERNATIONAL LTD.
1993 SHARE OPTION PLAN
1997 INTERIM OPTION PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
MICHAEL E. MARKS
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
FLEXTRONICS INTERNATIONAL LTD.
2090 FORTUNE DRIVE, SAN JOSE, CA 95131
(Name and Address of Agent For Service)
(408) 428-1300
(Telephone Number, including Area Code, of Agent For Service)
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING WITH
THE SECURITIES AND EXCHANGE COMMISSION, AND SALES OF THE REGISTERED SECURITIES
WILL BEGIN AS SOON AS REASONABLY PRACTICABLE AFTER SUCH EFFECTIVE DATE.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED
SECURITIES TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
---------------- ---------- ------------ ----------------- ----------------
<S> <C> <C> <C> <C>
Ordinary Shares, S$0.01 par value: 2,000,000 $36.75 $73,500,000 $21,682.50
1993 Share Option Plan(2)
Ordinary Shares, S$0.01 par value: 250,000 $36.75 $9,187,500 $2,710.31
1997 Interim Option Plan
Ordinary Shares, S$0.01 par value: 75,000 $36.75 $2,756,250 $813.09
1997 Employee Stock Purchase Plan
</TABLE>
(1) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per Ordinary Share of Flextronics International Ltd.
on December 10, 1997 as reported by the Nasdaq National Market.
(2) Represents additional shares available for issuance under the Flextronics
International Ltd. 1993 Share Option Plan. A total of 600,000 shares
issuable under the Flextronics International Ltd. 1993 Share Option Plan
have previously been registered under the Securities Act.
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended March 31, 1997 filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which Annual Report
contains audited financial statements for the fiscal
year ended March 31, 1997, as amended on the
Registrant's Form 10-K/A, and as amended on the
Registrant's Form 10-K/A;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997 filed pursuant to Section
13(a) of the Exchange Act, as amended on the
Registrant's Form 10-Q/A; and the Registrant's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1997 pursuant to Section 13(a) of the Exchange Act; and
(c) The description of the Registrant's Ordinary Shares
contained in the Registrant's registration statement on
Form 8-A with the Commission under Section 12(g) of the
Exchange Act.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates
that all securities registered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 155 of the Registrant's Articles of Association provides
that, subject to the Singapore Companies Act, every Director or other officer
shall be entitled to be indemnified by the Registrant against all liabilities
incurred by him in the execution and discharge of his duties or in relation
thereto including any liability in defending any proceedings, civil or criminal,
which relate to anything done or omitted or alleged to have been done or omitted
by him as an officer or employee of the Registrant and (i) in which judgment is
given in his favor (or the proceedings otherwise disposed of without finding or
admission of any material breach of duty), (ii) in which he is acquitted or
(iii) in connection with any application under any statute for relief from
liability in respect of any such act or omission in which relief is granted to
him by the court and further, that no Director or other officer shall be liable
for the acts, receipts, neglects or defaults of any other Director or officer or
for joining in any receipt or other act for conformity or for any loss or
expense happening to the Registrant through the insufficiency or deficiency of
title to any property acquired by order of the Directors for the Registrant or
for the insufficiency or deficiency of any security upon which any of the moneys
of the Registrant are invested or for any loss or damage arising from the
bankruptcy, insolvency or tortious act of any person with whom any moneys,
securities or effects are deposited or for any other loss or misfortune in the
execution of his duties unless the same happens through his own negligence,
willful default, breach of duty or breach of trust. Section 172 of the Companies
Act prohibits a company from indemnifying its directors or officers against
liability which by law would otherwise attach to them in respect of any
negligence, default, breach of duty or breach of trust of which they may be
guilty in relation to the Registrant, except to the extent permitted under
Article 155 of the Registrant's Articles of Association, and any such indemnity
is void and unenforceable. The Registrant has entered into Indemnification
Agreements with its officers and directors that
<PAGE> 3
provide the Registrant's officers and directors with indemnification to the
maximum extent permitted by the Companies Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Indenture dated as of October 15, 1997 between the Registrant
and State Street Bank and Trust Company of California, N.A.,
as trustee. (Incorporated by reference to Exhibit 10.1 of the
Registrant's Current Report on Form 8-K for the event reported
on October 15, 1997.)
4.2 Revolving Credit and Term Loan Agreement dated as of March 27,
1997 among the Registrant, The First National Bank of Boston,
as Agent, and the other lending institutions listed on
Schedule 1 attached thereto. The Registrant agrees to furnish
a copy of the omitted schedule to the Commission upon request.
(Incorporated by reference to Exhibit 5(a) of the Registrant's
Current Report on Form 8-K for the event reported on March 27,
1997.)
4.3 Revolving Credit Agreement dated as of March 27, 1997 among
Flextronics International USA, Inc., The First National Bank
of Boston, as Agent, and the other lending institutions listed
on Schedule 1 attached thereto. The Registrant agrees to
furnish a copy of the omitted schedule to the Commission upon
request. (Incorporated by reference to Exhibit 5(b) of the
Registrant's Current Report on Form 8-K for the event reported
on March 27, 1997.)
5.1 Opinion and Consent of Allen & Gledhill.
23.1 Consent of Independent Auditors - Ernst & Young LLP.
24.1 Power of Attorney. Reference is made to page 5 of this
Registration Statement.
99.1 1993 Share Option Plan. (Incorporated by reference to Exhibit
10.2 of the Registrant's registration statement on Form S-1,
No. 33-74622.)
99.2 1997 Interim Option Plan.
99.3 1997 Employee Stock Purchase Plan.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value
of securities offered would not exceed that which
was registered) and any deviation from the low or
high end of the estimated maximum offering
range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change
in the maximum aggregate offering
3
<PAGE> 4
price set forth in the "Calculation of
Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above
do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the
Commission filed by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions discussed in Item 6 hereof, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on the 15th day of
December, 1997.
FLEXTRONICS INTERNATIONAL LTD.
By: /s/ MICHAEL E. MARKS
------------------------------------
Michael E. Marks
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints jointly and severally, Michael E. Marks
and Robert R.B. Dykes and each one of them, his attorneys-in-fact, each with the
power of substitution, for him in any and all capacities, to sign any and all
amendments to this registration statement (including any and all amendments,
including post-effective amendments), and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ MICHAEL E. MARKS Chairman of the Board, and Chief Executive December 15, 1997
- --------------------------------- Officer (principal executive officer)
Michael E. Marks
President, Asia Pacific Operations and Director
- ---------------------------------
Tsui Sung Lam
/s/ ROBERT R.B. DYKES Senior Vice President of Finance and December 15, 1997
- --------------------------------- Administration (principal financial
Robert R.B. Dykes and accounting officer)
/s/ STEPHEN J.L. REES Senior Vice President, Worldwide Sales
- --------------------------------- and Marketing and Director
Stephen J.L. Rees
/s/ MICHAEL J. MORITZ Director December 15, 1997
- ---------------------------------
Michael J. Moritz
/s/ RICHARD L. SHARP Director December 15, 1997
- ---------------------------------
Richard L. Sharp
/s/ PATRICK FOLEY Director December 15, 1997
- ---------------------------------
Patrick Foley
Director
- ---------------------------------
Alain Ahkong
Director
- ---------------------------------
Shing Leong Hui
</TABLE>
5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Document Description
- ------ --------------------
<S> <C>
4.1 Indenture dated as of October 15, 1997 between the Registrant and
State Street Bank and Trust Company of California, N.A., as
trustee. (Incorporated by reference to Exhibit 10.1 of the
Registrant's Current Report on Form 8-K for the event reported on
October 15, 1997.)
4.2 Revolving Credit and Term Loan Agreement dated as of March 27,
1997 among the Registrant, The First National Bank of Boston, as
Agent, and the other lending institutions listed on Schedule 1
attached thereto. The Registrant agrees to furnish a copy of the
omitted schedule to the Commission upon request. (Incorporated by
reference to Exhibit 5(a) of the Registrant's Current Report on
Form 8-K for the event reported on March 27, 1997.)
4.3 Revolving Credit Agreement dated as of March 27, 1997 among
Flextronics International USA, Inc., The First National Bank of
Boston, as Agent, and the other lending institutions listed on
Schedule 1 attached thereto. The Registrant agrees to furnish a
copy of the omitted schedule to the Commission upon request.
(Incorporated by reference to Exhibit 5(b) of the Registrant's
Current Report on Form 8-K for the event reported on March 27,
1997.)
5.1 Opinion and Consent of Allen & Gledhill.
23.1 Consent of Independent Auditors - Ernst & Young LLP.
24.1 Power of Attorney. Reference is made to page 5 of this
Registration Statement.
99.1 1993 Share Option Plan. (Incorporated by reference to Exhibit 10.2
of the Registrant's registration statement on Form S-1, No.
33-74622.)
99.2 1997 Interim Option Plan.
99.3 1997 Employee Stock Purchase Plan.
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[Allen & Gledhill Letterhead]
11th December 1997
Flextronics International Ltd.
514 Chai Chee Lane #04-13
Bedok Industrial Estate
Singapore 469029
Dear Sirs
REGISTRATION STATEMENT ON FORM S-8 OF
FLEXTRONICS INTERNATIONAL LTD. (THE "COMPANY")
At your request, we have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission on or about December 12th, 1997 in connection with the
registration under the Securities Act of 1933, as amended, of:-
1. an aggregate of 2,000,000 ordinary shares of S$0.01 each in the capital
of the Company ("Ordinary Shares") (the "1993 SOP Option Shares") subject to
issuance by the Company upon the valid exercise of subscription rights
represented by outstanding share options granted under the Company's 1993 Share
Option Plan (the "1993 SOP"),
2. an aggregate of 250,000 Ordinary Shares (the "1997 IOP Option Shares")
subject to issuance by the Company upon valid exercise of subscription rights
represented by outstanding share options
<PAGE> 2
granted under the Company's 1997 Interim Option Plan (the "1997 IOP"); and
3. an aggregate of 75,000 Ordinary Shares (the "1997 ESPP Option Shares")
subject to issuance by the Company upon the valid exercise of purchase rights
represented by outstanding share options granted under the Company's 1997
Employee Stock Purchase Plan (the "1997 ESPP"),
(the 1993 SOP Option Shares, the 1997 IOP Option Shares and the 1997 ESPP
Option Shares are hereinafter collectively referred to as the "Option Shares").
As your Singapore counsel, we have examined the proceedings taken by the
Company in connection with:-
(a) the adoption of each of the 1993 SOP, the 1997 IOP and the 1997 ESPP;
(b) the increase in the maximum number of Ordinary Shares authorised for
issuance under the 1993 SOP; and
(c) the allotment and issuance of new Ordinary Shares arising from the
exercise of the subscription/purchase rights represented by outstanding share
options granted under each of the 1993 SOP, the 1997 IOP and the 1997 ESPP
respectively (the "Company's Allotment Procedures").
We have also made such other examinations of law and fact as we have considered
necessary in order to form a basis for the opinion hereafter expressed.
Based on the foregoing, we are of the opinion that the Option Shares allotted
and issued by the Company (i) upon the exercise of the subscription/purchase
rights represented by outstanding share options granted under each of the 1993
SOP, the 1997 IOP and the 1997 ESPP in accordance with their respective terms,
(ii) pursuant to the Company's Allotment Procedures, and (iii) represented by
share certificates issued by in respect of such Option Shares, will be legally
issued and fully-paid.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement and any amendments thereto.
Yours faithfully
/s/ Allen & Gledhill
- --------------------------
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Form S-8 Registration
Statement pertaining to the 1993 Share Option Plan, 1997 Interim Option Plan
and 1997 Employee Stock Purchase Plan of Flextronics International Ltd., of our
report dated July 31, 1997, with respect to the consolidated financial
statements and schedule of Flextronics International Ltd., included in the
annual report in Form 10K/A for year ended March 31, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young
Ernst & Young
Singapore
December 12, 1997
<PAGE> 1
EXHIBIT 99.2
FLEXTRONICS INTERNATIONAL LTD.
1997 INTERIM OPTION PLAN
As Adopted June 5, 1997
1. PURPOSE. The purpose of this Plan is to provide
incentives to attract, retain and motivate eligible persons whose present and
potential contributions are important to the success of the Company, its
Parent, Subsidiaries and Affiliates, by offering them an opportunity to
participate in the Company's future performance through awards of Options.
Capitalized terms not defined in the text are defined in Section 20.
2. SHARES SUBJECT TO THE PLAN.
2.1 Number of Shares Available. Subject to
Sections 2.2 and 15, the total number of Shares reserved and available for
grant and issuance pursuant to this Plan will be 130,000 Shares. Subject to
Sections 2.2 and 15, Shares that are subject to issuance upon exercise of an
Option but cease to be subject to such Option for any reason other than
exercise of such Option will again be available for grant and issuance in
connection with future Options under this Plan. At all times the Company shall
reserve and keep available a sufficient number of Shares as shall be required
to satisfy the requirements of all outstanding Options granted under this Plan.
2.2 Adjustment of Shares. In the event that the
number of outstanding Shares is changed by a stock dividend, recapitalization,
stock split, reverse stock split, subdivision, combination, reclassification or
similar change in the capital structure of the Company without consideration,
then (a) the number of Shares reserved for issuance under this Plan and (b) the
Exercise Prices of and number of Shares subject to outstanding Options will be
proportionately adjusted, subject to any required action by the Board or the
shareholders of the Company and compliance with applicable securities laws;
provided, however, that (i) fractions of a Share will not be issued but will be
replaced by a cash payment equal to the Fair Market Value of such fraction of a
Share, and (ii) no such adjustment shall be made if as a result, the Exercise
Price would fall below the par value of a Share and if such adjustment would
but for this paragraph (ii) result in the Exercise Price being less than the
par value of a Share, the Exercise Price payable shall be the par value of a
Share as determined by the Committee.
3. ELIGIBILITY. Options may be granted only to employees,
consultants, independent contractors and advisors of the Company or any Parent,
Subsidiary or Affiliate of the Company; provided, however, that such employees,
consultants, independent contractors and advisors are not officers or directors
of the Company or any Parent, Subsidiary or Affiliate of the Company; and
provided further that such consultants, independent contractors and advisors
(i) render bona fide services not in connection with the offer and sale of
securities in a capital-raising transaction and (ii) are not residents of
Singapore. No person will be eligible to receive more than 50,000 Shares in
any calendar year under this Plan pursuant to the grant of Options hereunder,
other than new employees of the Company or of a Parent, Subsidiary or Affiliate
of the Company who are eligible to receive up to a maximum of 70,000 Shares in
the calendar year in which they commence their employment. A person may be
granted more than one Option under this Plan.
4. ADMINISTRATION.
4.1 Committee Authority. This Plan will be
administered by the Committee or by the Board acting as the Committee. Subject
to the general purposes, terms and conditions of this Plan, and to the
direction of the Board, the Committee will have full power to implement and
carry out this Plan. Without limitation, the Committee will have the authority
to:
(a) construe and interpret this Plan, any Award Agreement
and any other agreement or document executed pursuant
to this Plan;
<PAGE> 2
1997 Interim Option Plan
(b) prescribe, amend and rescind rules and regulations
relating to this Plan;
(c) select persons to receive Options;
(d) determine the form and terms of Options;
(e) determine the number of Shares or other consideration
subject to Options;
(f) determine whether Options will be granted singly, in
combination with, in tandem with, in replacement of, or
as alternatives to, other Options under this Plan or
any other incentive or compensation plan of the Company
or any Parent, Subsidiary or Affiliate of the Company;
(g) grant waivers of Plan or Option conditions;
(h) determine the vesting, exercisability and payment of
Options;
(i) correct any defect, supply any omission or reconcile
any inconsistency in this Plan, any Option or any Award
Agreement;
(j) determine whether an Option has been earned; and
(k) make all other determinations necessary or advisable
for the administration of this Plan.
4.2 Committee Discretion. Any determination made
by the Committee with respect to any Option will be made in its sole discretion
at the time of grant of the Option or, unless in contravention of any express
term of this Plan or Option, at any later time, and such determination will be
final and binding on the Company and on all persons having an interest in any
Option under this Plan. The Board may delegate to one or more officers of the
Company the authority to grant an Option under this Plan to Participants who
are not Insiders of the Company.
5. OPTIONS. The Committee may grant Nonqualified Stock
Options ("NQSOS") to eligible persons and will determine the number of Shares
subject to the Option, the Exercise Price of the Option, the period during
which the Option may be exercised, and all other terms and conditions of the
Option, subject to the following:
5.1 Form of Option Grant. Each Option granted
under this Plan will be evidenced by an Award Agreement and will be in such
form and contain such provisions (which need not be the same for each
Participant) as the Committee may from time to time approve, and which will
comply with and be subject to the terms and conditions of this Plan.
5.2 Date of Grant. The date of grant of an Option
will be the date on which the Committee makes the determination to grant such
Option, unless otherwise specified by the Committee. The Award Agreement and a
copy of this Plan will be delivered to the Participant within a reasonable time
after the granting of the Option.
5.3 Exercise Period. Options may be exercisable
within the times or upon the events determined by the Committee as set forth in
the Award Agreement governing such Option; provided, however, that no Option
will be exercisable after the expiration of five (5) years from the date the
Option is granted. The Committee also may provide for Options to become
exercisable at one time or from time to time, periodically or otherwise, in
such number of Shares or percentage of Shares as the Committee determines.
5.4 Exercise Price. The Exercise Price of an
Option will be determined by the Committee when the Option is granted and may
be not less than 85% of the Fair Market Value of the Shares on the
-2-
<PAGE> 3
1997 Interim Option Plan
date of grant. In no event may the Exercise Price of an Option be less than
the par value of the Shares. Payment for the Shares purchased may be made in
accordance with Section 6 of this Plan.
5.5 Method of Exercise. Options may be exercised
only by delivery to the Company of a written stock option exercise agreement
(the "EXERCISE AGREEMENT") in a form approved by the Committee (which need not
be the same for each Participant), stating the number of Shares being
purchased, the restrictions imposed on the Shares purchased under such Exercise
Agreement, if any, and such representations and agreements regarding
Participant's investment intent and access to information and other matters, if
any, as may be required or desirable by the Company to comply with applicable
securities laws, together with payment in full of the Exercise Price for the
number of Shares being purchased.
5.6 Termination. Notwithstanding the exercise
periods set forth in the Award Agreement, exercise of an Option will always be
subject to the following:
(a) If the Participant is Terminated for any reason except
death or Disability, then the Participant may exercise
such Participant's Options only to the extent that such
Options would have been exercisable upon the
Termination Date no later than three (3) months after
the Termination Date (or such shorter or longer time
period as may be determined by the Committee, but in
any event, no later than the expiration date of the
Options.)
(b) If the Participant is Terminated because of
Participant's death or Disability (or the Participant
dies within three (3) months after a Termination other
than because of Participant's death or Disability),
then Participant's Options may be exercised only to the
extent that such Options would have been exercisable by
Participant on the Termination Date and must be
exercised by Participant (or Participant's legal
representative or authorized assignee) no later than
twelve (12) months after the Termination Date (or such
shorter or longer time period as may be determined by
the Committee, but in any event no later than the
expiration date of the Options.)
5.7 Limitations on Exercise. The Committee may
specify a reasonable minimum number of Shares that may be purchased on any
exercise of an Option, provided that such minimum number will not prevent
Participant from exercising the Option for the full number of Shares for which
it is then exercisable.
5.8 Modification, Extension or Renewal. The
Committee may modify, extend or renew outstanding Options and authorize the
grant of new Options in substitution therefor, provided that (a) any such
action may not, without the written consent of a Participant, impair any of
such Participant's rights under any Option previously granted, and (b) no such
modification, extension or renewal shall be made if it would have the effect of
extending the expiration date of the Option(s) concerned to more than five (5)
years from the date the relevant Option(s) were first granted. The Committee
may reduce the Exercise Price of outstanding Options without the consent of
Participants affected by a written notice to them; provided, however, that the
Exercise Price may not be reduced below the minimum Exercise Price that would
be permitted under Section 5.4 of this Plan for Options granted on the date the
action is taken to reduce the Exercise Price.
6. PAYMENT FOR SHARE PURCHASES. Payment for Shares
purchased pursuant to this Plan may be made in cash (by check) or, where
expressly approved for the Participant by the Committee and where permitted by
law:
(a) provided that a public market for the Company's shares
exists:
(1) through a "same day sale" commitment from the
Participant and a broker-dealer that is a
member of the National Association of
Securities Dealers (an "NASD DEALER") whereby
the Participant irrevocably elects to exercise
the Option and to sell a portion of the Shares
so purchased to pay for the Exercise Price, and
whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the
Exercise Price directly to the Company; or
-3-
<PAGE> 4
1997 Interim Option Plan
(2) through a "margin" commitment from the
Participant and a NASD Dealer whereby the
Participant irrevocably elects to exercise the
Option and to pledge the Shares so purchased to
the NASD Dealer in a margin account as security
for a loan from the NASD Dealer in the amount
of the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such
Shares to forward the Exercise Price directly
to the Company; or
(b) by any combination of the foregoing.
7. WITHHOLDING TAXES. Whenever Shares are to be issued
upon exercise of an Option granted under this Plan, the Company may require the
Participant to remit to the Company an amount sufficient to satisfy federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares. Whenever, under this Plan,
payment upon exercise of an Option is to be made in cash, such payment will be
net of an amount sufficient to satisfy federal, state, and local withholding
tax requirements.
8. PRIVILEGES OF STOCK OWNERSHIP.
8.1 Voting and Dividends. No Participant will
have any of the rights of a shareholder with respect to any Shares until the
Shares are issued to the Participant. After Shares are issued to the
Participant, the Participant will be a shareholder and have all the rights of a
shareholder with respect to such Shares, including the right to vote and
receive all dividends or other distributions made or paid with respect to such
Shares.
8.2 Financial Statements. The Company will
provide financial statements to each Participant prior to such Participant's
purchase of Shares under this Plan, and to each Participant annually during the
period such Participant has Options outstanding; provided, however, the Company
will not be required to provide such financial statements to Participants whose
services in connection with the Company assure them access to equivalent
information.
9. TRANSFERABILITY. Options granted under this Plan, and
any interest therein, will not be transferable or assignable by Participant,
and may not be made subject to execution, attachment or similar process,
otherwise than by will or by the laws of descent and distribution or as
consistent with the specific Plan and Award Agreement provisions relating
thereto. During the lifetime of the Participant an Option will be exercisable
only by the Participant, and any elections with respect to an Option, may be
made only by the Participant.
10. CERTIFICATES. All certificates for Shares or other
securities delivered under this Plan will be subject to such stock transfer
orders, legends and other restrictions as the Committee may deem necessary or
advisable, including restrictions under any applicable federal, state or
foreign securities law, or any rules, regulations and other requirements of the
SEC or any stock exchange or automated quotation system upon which the Shares
may be listed or quoted.
11. ESCROW. To enforce any restrictions on a Participant's
Shares, the Committee may require the Participant to deposit all certificates
representing Shares, together with stock powers or other instruments of
transfer approved by the Committee, appropriately endorsed in blank, with the
Company or an agent designated by the Company to hold in escrow until such
restrictions have lapsed or terminated, and the Committee may cause a legend or
legends referencing such restrictions to be placed on the certificates.
12. EXCHANGE AND CANCELLATION OF OPTIONS. The Committee
may, at any time or from time to time, authorize the Company, with the consent
of the respective Participants, to issue new Options in exchange for the
surrender and cancellation of any or all outstanding Options. The Committee
may at any time cancel an Option previously granted to a Participant with
payment in cash, Shares or other consideration, based on such terms and
conditions as the Committee and the Participant may agree.
13. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An
Option will not be effective unless such Option is in compliance with all
applicable federal and state securities laws, rules and
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<PAGE> 5
1997 Interim Option Plan
regulations of any governmental body, and the requirements of any stock
exchange or automated quotation system upon which the Shares may then be listed
or quoted, as they are in effect on the date of grant of the Option and also on
the date of exercise or other issuance. Notwithstanding any other provision in
this Plan, the Company will have no obligation to issue or deliver certificates
for Shares under this Plan prior to: (a) obtaining any approvals from
governmental agencies that the Company determines are necessary or advisable;
and/or (b) completion of any registration or other qualification of such Shares
under any state or federal law or ruling of any governmental body that the
Company determines to be necessary or advisable. The Company will be under no
obligation to register the Shares with the SEC or to effect compliance with the
registration, qualification or listing requirements of any state securities
laws, stock exchange or automated quotation system, and the Company will have
no liability for any inability or failure to do so.
14. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any
Option granted under this Plan will confer or be deemed to confer on any
Participant any right to continue in the employ of, or to continue any other
relationship with, the Company or any Parent, Subsidiary or Affiliate of the
Company or limit in any way the right of the Company or any Parent, Subsidiary
or Affiliate of the Company to terminate Participant's employment or other
relationship at any time, with or without cause.
15. CORPORATE TRANSACTIONS.
15.1 Assumption or Replacement of Options by
Successor. In the event of (a) a dissolution or liquidation of the Company,
(b) a merger or consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the shareholders
of the Company or their relative share holdings and the Options granted under
this Plan are assumed, converted or replaced by the successor corporation,
which assumption will be binding on all Participants), (c) a merger in which
the Company is the surviving corporation but after which the shareholders of
the Company (other than any shareholder which merges (or which owns or controls
another corporation which merges) with the Company in such merger) cease to own
their shares or other equity interests in the Company, (d) the sale of
substantially all of the assets of the Company, or (e) any other transaction
which qualifies as a "corporate transaction" under Section 424(a) of the Code
wherein the shareholders of the Company give up all of their equity interest in
the Company (except for the acquisition, sale or transfer of all or
substantially all of the outstanding shares of the Company from or by the
shareholders of the Company), any or all outstanding Options may be assumed,
converted or replaced by the successor corporation (if any), which assumption,
conversion or replacement will be binding on all Participants. In the
alternative, the successor corporation may substitute equivalent Options or
provide substantially similar consideration to Participants as was provided to
shareholders (after taking into account the existing provisions of the
Options). The successor corporation may also issue, in place of outstanding
Shares of the Company held by the Participant, substantially similar shares or
other property subject to repurchase restrictions no less favorable to the
Participant. In the event such successor corporation (if any) refuses to
assume or substitute Options, as provided above, pursuant to a transaction
described in this Subsection 15.1, the vesting of such Options will accelerate
and the Options will become exercisable in full prior to the consummation of
such event at such times and on such conditions as the Committee determines,
and if such Options are not exercised prior to the consummation of the
corporate transaction, they shall terminate in accordance with the provisions
of this Plan.
15.2 Other Treatment of Options. Subject to any
greater rights granted to Participants under the foregoing provisions of this
Section 15, in the event of the occurrence of any transaction described in
Section 15.1, any outstanding Options will be treated as provided in the
applicable agreement or plan of merger, consolidation, dissolution,
liquidation, sale of assets or other "corporate transaction."
15.3 Assumption of Options by the Company. The
Company, from time to time, also may substitute or assume outstanding options
granted by another company, whether in connection with an acquisition of such
other company or otherwise, by either; (a) granting an Option under this Plan
in substitution of such other company's option; or (b) assuming such option as
if it had been granted under this Plan if the terms of such assumed option
could be applied to an Option granted under this Plan. Such substitution or
assumption will be permissible if the holder of the substituted or assumed
option would have been eligible to be granted an Option under this Plan if the
other company had applied the rules of this Plan to such grant. In the event
the Company
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<PAGE> 6
1997 Interim Option Plan
assumes an option granted by another company, the terms and conditions of such
option will remain unchanged (except that the exercise price and the number and
nature of Shares issuable upon exercise of any such option will be adjusted
appropriately pursuant to Section 424(a) of the Code). In the event the
Company elects to grant a new Option rather than assuming an existing option,
such new Option may be granted with a similarly adjusted Exercise Price.
16. EFFECTIVE DATE. This Plan will become effective on the
date the Board adopts this Plan (the "EFFECTIVE DATE").
17. TERM OF PLAN/GOVERNING LAW. Unless earlier terminated
as provided herein, this Plan will terminate ten (10) years from the Effective
Date. This Plan and all agreements thereunder shall be governed by and
construed in accordance with the laws of Singapore.
18. AMENDMENT OR TERMINATION OF PLAN. The Board may at any
time terminate or amend this Plan in any respect, including without limitation
amendment of any form of Award Agreement or instrument to be executed pursuant
to this Plan.
19. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of
this Plan by the Board nor any provision of this Plan will be construed as
creating any limitations on the power of the Board to adopt such additional
compensation arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise than under this Plan, and
such arrangements may be either generally applicable or applicable only in
specific cases.
20. DEFINITIONS. As used in this Plan, the following terms
will have the following meanings:
"AFFILIATE" means any corporation that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, another corporation, where "control" (including
the terms "controlled by" and "under common control with") means the
possession, direct or indirect, of the power to cause the direction of the
management and policies of the corporation, whether through the ownership of
voting securities, by contract or otherwise.
"AWARD AGREEMENT" means, with respect to each Option,
the signed written agreement between the Company and the Participant setting
forth the terms and conditions of the Option.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as
amended.
"COMMITTEE" means the committee appointed by the Board
to administer this Plan, or if no such committee is appointed, the Board.
"COMPANY" means Flextronics International Ltd. or any
successor corporation.
"DISABILITY" means a disability, whether temporary or
permanent, partial or total, within the meaning of Section 22(e)(3) of the
Code, as determined by the Committee.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"EXERCISE PRICE" means the price at which a holder of
an Option may purchase the Shares issuable upon exercise of the Option.
"FAIR MARKET VALUE" means, as of any date, the value of
the Shares determined as follows:
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<PAGE> 7
1997 Interim Option Plan
(a) if such Shares are then quoted on the Nasdaq National
Market, the closing price of such Shares on the Nasdaq
National Market on the date of determination as
reported in The Wall Street Journal;
(b) if such Shares are publicly traded and are then listed
on a national securities exchange, the closing price of
such Shares on the date of determination on the
principal national securities exchange on which the
Shares are listed or admitted to trading as reported in
The Wall Street Journal;
(c) if such Shares are publicly traded but are not quoted
on the Nasdaq National Market nor listed or admitted to
trading on a national securities exchange, the average
of the closing bid and asked prices on the date of
determination as reported in The Wall Street Journal;
or
(d) if none of the foregoing is applicable, by the
Committee in good faith.
"INSIDER" means an officer or director of the Company
or any other person whose transactions in the Company's Shares are subject to
Section 16 of the Exchange Act.
"OPTION" means an award of an option to purchase Shares
pursuant to Section 5.
"PARENT" means any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company, if at the time of
the granting of an Option under this Plan, each of such corporations other than
the Company owns shares possessing 50% or more of the total combined voting
power of all classes of shares in one of the other corporations in such chain.
"PARTICIPANT" means a person who receives an Option
under this Plan.
"PLAN" means this Flextronics International Ltd. 1997
Interim Option Plan, as amended from time to time.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SHARES" means Ordinary Shares of the Company with a
par value of S$0.01 per share reserved for issuance under this Plan, as
adjusted pursuant to Sections 2 and 15, and any successor security.
"SUBSIDIARY" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if, at
the time of granting of the Option, each of the corporations other than the
last corporation in the unbroken chain owns shares possessing 50% or more of
the total combined voting power of all classes of shares in one of the other
corporations in such chain.
"TERMINATION" or "TERMINATED" means, for purposes of
this Plan with respect to a Participant, that the Participant has for any
reason ceased to provide services as an employee, consultant, independent
contractor or advisor to the Company or a Parent, Subsidiary or Affiliate of
the Company, except in the case of sick leave, military leave, or any other
leave of absence approved by the Committee. The Committee will have sole
discretion to determine whether a Participant has ceased to provide services
and the effective date on which the Participant ceased to provide services (the
"TERMINATION DATE").
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<PAGE> 1
EXHIBIT 99.3
FLEXTRONICS INTERNATIONAL LTD. 1997 EMPLOYEE SHARE PURCHASE PLAN
As Adopted September 10, 1997
1. ESTABLISHMENT OF PLAN. Flextronics International Ltd. (the
"COMPANY") proposes to grant options for purchase of the Company's Ordinary
Shares to eligible employees of the Company and its Participating Subsidiaries
(as hereinafter defined) pursuant to this Employee Share Purchase Plan (this
"PLAN"). For purposes of this Plan, "PARENT CORPORATION" and "SUBSIDIARY"
(collectively, "PARTICIPATING SUBSIDIARIES") shall have the same meanings as
"parent corporation" and "subsidiary corporation" in Sections 424(e) and
424(f), respectively, of the Internal Revenue Code of 1986, as amended (the
"CODE"). "PARTICIPATING SUBSIDIARIES" are Parent Corporations or Subsidiaries
that the Board of Directors of the Company (the "BOARD") designates from time
to time as corporations that shall participate in this Plan. The Company
intends this Plan to qualify as an "employee stock purchase plan" under Section
423 of the Code (including any amendments to or replacements of such Section),
and this Plan shall be so construed. Any term not expressly defined in this
Plan but defined for purposes of Section 423 of the Code shall have the same
definition herein. A total of 75,000 Ordinary Shares of the Company are
reserved for issuance under this Plan. Such number shall be subject to
adjustments effected in accordance with Section 14 of this Plan.
2. PURPOSE. The purpose of this Plan is to provide eligible
employees of the Company and Participating Subsidiaries with a convenient means
of acquiring an equity interest in the Company through payroll deductions, to
enhance such employees' sense of participation in the affairs of the Company
and Participating Subsidiaries, and to provide an incentive for continued
employment.
3. ADMINISTRATION. This Plan shall be administered by the Board or
by a committee of not less than two members of the Board appointed to
administer this Plan (the "COMMITTEE"). As used in this Plan, references to
the "Committee" shall mean either such committee or the Board if no committee
has been established. Subject to the provisions of this Plan and the
limitations of Section 423 of the Code or any successor provision in the Code,
all questions of interpretation or application of this Plan shall be determined
by the Committee and its decisions shall be final and binding upon all
participants. Members of the Committee shall receive no compensation for their
services in connection with the administration of this Plan, other than
standard fees as established from time to time by the Board for services
rendered by Board members serving on Board committees. All expenses incurred
in connection with the administration of this Plan shall be paid by the
Company.
4. ELIGIBILITY. Any employee of the Company or the Participating
Subsidiaries is eligible to participate in an Offering Period (as hereinafter
defined) under this Plan except the following:
(a) employees who are not employed by the Company or Participating
Subsidiaries one month before the beginning of such Offering Period;
(b) employees who are customarily employed for twenty (20) hours
or less per week;
(c) employees who are customarily employed for five (5) months or
less in a calendar year;
(d) employees who, together with any other person whose shares
would be attributed to such employee pursuant to Section 424(d) of the Code,
own shares or hold options to purchase shares possessing five percent (5%) or
more of the total combined voting power or value of all classes of shares of
the Company or any of its Participating Subsidiaries or who, as a result of
being granted an option under this Plan with respect to such Offering Period,
would own shares or hold options to purchase shares possessing five percent
(5%) or more of the total combined voting power or value of all classes of
shares of the Company or any of its Participating Subsidiaries; and
(e) individuals who provide services to the Company or any of its
Participating Subsidiaries as independent contractors who are reclassified as
common law employees for any purpose other than federal income and employment
tax purposes.
<PAGE> 2
5. OFFERING DATES. The offering periods of this Plan (each, an
"OFFERING PERIOD") shall be of six (6) months duration commencing on December
1 and June 1 of each year and ending on May 31 and November 30 of each year.
Each Offering Period shall consist of one (1) six-month purchase period (a
"PURCHASE PERIOD") during which payroll deductions of the participants are
accumulated under this Plan. The first Offering Period shall begin on December
1, 1997. The first business day of each Offering Period is referred to as the
"OFFERING DATE". The last business day of each Purchase Period is referred to
as the "PURCHASE DATE". The Board shall have the power to change the duration
of Offering Periods or Purchase Periods with respect to offerings (and
specifically shall have the power to change the duration of Offering Periods
from six (6) months to twenty-four (24) months) without shareholder approval if
such change is announced at least fifteen (15) days prior to the scheduled
beginning of the first Offering Period or Purchase Period to be affected.
6. PARTICIPATION IN THIS PLAN. Eligible employees may become
participants in an Offering Period under this Plan on the first Offering Date
after satisfying the eligibility requirements by delivering a subscription
agreement to the Company's treasury department (the "TREASURY DEPARTMENT") not
later than fifteen (15) days before such Offering Date unless a later time for
filing the subscription agreement authorizing payroll deductions is set by the
Committee for all eligible employees with respect to a given Offering Period.
An eligible employee who does not deliver a subscription agreement to the
Treasury Department by such date after becoming eligible to participate in such
Offering Period shall not participate in that Offering Period or any subsequent
Offering Period unless such employee enrolls in this Plan by filing a
subscription agreement with the Treasury Department not later than fifteen (15)
days preceding a subsequent Offering Date. Once an employee becomes a
participant in an Offering Period, such employee will automatically participate
in the Offering Period commencing immediately following the last day of the
prior Offering Period unless the employee withdraws or is deemed to withdraw
from this Plan or terminates further participation in the Offering Period as
set forth in Section 11 below. Such participant is not required to file any
additional subscription agreement in order to continue participation in this
Plan.
7. GRANT OF OPTION ON ENROLLMENT. Enrollment by an eligible employee
in this Plan with respect to an Offering Period will constitute the grant (as
of the Offering Date) by the Company to such employee of an option to purchase
on the Purchase Date up to that number of whole Ordinary Shares of the Company
determined by dividing (a) the amount accumulated in such employee's payroll
deduction account during such Purchase Period by (b) the lower of (i)
eighty-five percent (85%) of the fair market value of an Ordinary Share of the
Company on the Offering Date (but in no event less than the par value of the
Company's Ordinary Shares), or (ii) eighty-five percent (85%) of the fair
market value of an Ordinary Share of the Company on the Purchase Date (but in
no event less than the par value of the Company's Ordinary Shares) and rounding
down to the nearest whole number, provided, however, that the number of
Ordinary Shares of the Company subject to any option granted pursuant to this
Plan shall not exceed the lesser of (a) the maximum number of shares set by the
Committee pursuant to Section 10(c) below with respect to the applicable
Purchase Date, or (b) the maximum number of shares which may be purchased
pursuant to Section 10(b) below with respect to the applicable Purchase Date.
The fair market value of the Company's Ordinary Shares shall be determined as
provided in Section 8 hereof.
8. PURCHASE PRICE. The purchase price per share at which an Ordinary
Share of the Company will be sold in any Offering Period shall be eighty-five
percent (85%) of the lesser of:
(a) The fair market value on the Offering Date; or
(b) The fair market value on the Purchase Date.
Notwithstanding the foregoing, in no event may the purchase price
of an Ordinary Share of the Company be less than the par value. For purposes
of this Plan, the term "FAIR MARKET VALUE" means, as of any date, the value of
an Ordinary Share of the Company determined as follows:
(a) if such Ordinary Shares are then quoted on the Nasdaq
National Market, the closing price on the Nasdaq
National Market on the date of determination as
reported in The Wall Street Journal;
(b) if such Ordinary Shares are publicly traded and are
then listed on a national securities exchange, the
closing price on the date of determination on the
principal national securities
2
<PAGE> 3
exchange on which the Ordinary Shares are listed or
admitted to trading as reported in The Wall Street
Journal;
(c) if such Ordinary Shares are publicly traded but are not
quoted on the Nasdaq National Market nor listed or
admitted to trading on a national securities exchange,
the average of the closing bid and asked prices on the
date of determination as reported in The Wall Street
Journal;
(d) if none of the foregoing is applicable, by the Board in
good faith.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE
OF SHARES.
(a) The purchase price of the shares is accumulated by regular
payroll deductions made during each Offering Period. The deductions are made
as a percentage of the participant's compensation in one percent (1%)
increments not less than two percent (2%), nor greater than ten percent (10%)
or such lower limit set by the Committee. Compensation shall mean base salary,
commissions, bonuses, and shift premiums not to exceed $250,000 per year,
provided however, that for purposes of determining a participant's base salary,
any election by such participant to reduce his or her regular cash remuneration
under Sections 125 or 401(k) of the Code shall be treated as if the participant
did not make such election. Payroll deductions shall commence on the first
payday following the Offering Date and shall continue to the end of the
Offering Period unless sooner altered or terminated as provided in this Plan.
(b) A participant may lower (but not increase) the rate of payroll
deductions during an Offering Period by filing with the Treasury Department a
new authorization for payroll deductions, in which case the new rate shall
become effective for the next payroll period commencing more than fifteen (15)
days after the Treasury Department's receipt of the authorization and shall
continue for the remainder of the Offering Period unless changed as described
below. Such change in the rate of payroll deductions may be made at any time
during an Offering Period, but not more than one (1) change may be made
effective during any Offering Period. A participant may increase or decrease
the rate of payroll deductions for any subsequent Offering Period by filing
with the Treasury Department a new authorization for payroll deductions not
later than fifteen (15) days before the beginning of such Offering Period.
(c) All payroll deductions made for a participant are credited to
his or her account under this Plan and are deposited with the general funds of
the Company. No interest accrues on the payroll deductions. All payroll
deductions received or held by the Company may be used by the Company for any
corporate purpose, and the Company shall not be obligated to segregate such
payroll deductions.
(d) On each Purchase Date, so long as this Plan remains in effect
and provided that the participant has not submitted a signed and completed
withdrawal form before that date which notifies the Company that the
participant wishes to withdraw from that Offering Period under this Plan and
have all payroll deductions accumulated in the account maintained on behalf of
the participant as of that date returned to the participant, the Company shall
apply the funds then in the participant's account to the purchase of whole
Ordinary Shares of the Company reserved under the option granted to such
participant with respect to the Offering Period to the extent that such option
is exercisable on the Purchase Date. The purchase price per share shall be as
specified in Section 8 of this Plan. Any cash remaining in a participant's
account after such purchase of shares shall be refunded to such participant in
cash, without interest; provided, however that any amount remaining in such
participant's account on a Purchase Date which is less than the amount
necessary to purchase a full Ordinary Share of the Company shall be carried
forward, without interest, into the next Purchase Period or Offering Period, as
the case may be. In the event that this Plan has been oversubscribed, all
funds not used to purchase shares on the Purchase Date shall be returned to the
participant, without interest. No Ordinary Shares shall be purchased on a
Purchase Date on behalf of any employee whose participation in this Plan has
terminated prior to such Purchase Date.
(e) As promptly as practicable after the Purchase Date, the
Company shall issue shares for the participant's benefit representing the
shares purchased upon exercise of his or her option.
(f) During a participant's lifetime, such participant's option to
purchase shares hereunder is exercisable only by him or her. The participant
will have no interest or voting right in shares covered by his or her option
until such option has been exercised.
3
<PAGE> 4
10. LIMITATIONS ON SHARES TO BE PURCHASED.
(a) No participant shall be entitled to purchase shares under
this Plan at a rate which, when aggregated with his or her rights to purchase
shares under all other employee share purchase plans of the Company or any
Subsidiary, exceeds $25,000 in fair market value, determined as of the Offering
Date (or such other limit as may be imposed by the Code) for each calendar year
in which the employee participates in this Plan.
(b) No more than two hundred percent (200%) of the number of
shares determined by using eighty-five percent (85%) of the fair market value
of an Ordinary Share of the Company on the Offering Date as the denominator may
be purchased by a participant on any single Purchase Date.
(c) No participant shall be entitled to purchase more than the
Maximum Share Amount (as defined below) on any single Purchase Date. Not less
than thirty (30) days prior to the commencement of any Offering Period, the
Committee may, in its sole discretion, set a maximum number of shares which may
be purchased by any employee at any single Purchase Date (hereinafter the
"MAXIMUM SHARE AMOUNT"). Until otherwise determined by the Committee, there
shall be no Maximum Share Amount. In no event shall the Maximum Share Amount,
if any, exceed the amounts permitted under Section 10(b) above. If a new
Maximum Share Amount is set, then all participants must be notified of such
Maximum Share Amount prior to the commencement of the next Offering Period.
Once the Maximum Share Amount is set, it shall continue to apply with respect
to all succeeding Purchase Dates and Offering Periods unless revised by the
Committee as set forth above.
(d) If the number of shares to be purchased on a Purchase Date by
all employees participating in this Plan exceeds the number of shares then
available for issuance under this Plan, then the Company will make a pro rata
allocation of the remaining shares in as uniform a manner as shall be
reasonably practicable and as the Committee shall determine to be equitable.
In such event, the Company shall give written notice of such reduction of the
number of shares to be purchased under a participant's option to each
participant affected thereby.
(e) Any payroll deductions accumulated in a participant's account
which are not used to purchase shares due to the limitations in this Section 10
shall be returned to the participant as soon as practicable after the end of
the applicable Purchase Period, without interest.
11. WITHDRAWAL.
(a) Each participant may withdraw from an Offering Period under
this Plan by signing and delivering to the Treasury Department a written notice
to that effect on a form provided for such purpose. Such withdrawal may be
elected at any time at least fifteen (15) days prior to the end of an Offering
Period.
(b) Upon withdrawal from this Plan, the accumulated payroll
deductions shall be returned to the withdrawn participant, without interest,
and his or her interest in this Plan shall terminate. In the event a
participant voluntarily elects to withdraw from this Plan, he or she may not
resume his or her participation in this Plan during the same Offering Period,
but he or she may participate in any Offering Period under this Plan which
commences on a date subsequent to such withdrawal by filing a new authorization
for payroll deductions in the same manner as set forth above for initial
participation in this Plan.
(c) If the purchase price on the first day of any current
Offering Period in which a participant is enrolled is higher than the purchase
price on the first day of any subsequent Offering Period, the Company will
automatically enroll such participant in the subsequent Offering Period. Any
funds accumulated in a participant's account prior to the first day of such
subsequent Offering Period will be applied to the purchase of shares on the
Purchase Date immediately prior to the first day of such subsequent Offering
Period. A participant does not need to file any forms with the Company to
automatically be enrolled in the subsequent Offering Period
12. TERMINATION OF EMPLOYMENT. Termination of a participant's
employment for any reason, including retirement, death or the failure of a
participant to remain an eligible employee of the Company or of a Participating
Subsidiary, immediately terminates his or her participation in this Plan. In
such event, the payroll deductions credited to the participant's account will
be returned to him or her or, in the case of his or her death, to his or her
legal
4
<PAGE> 5
representative, without interest. For purposes of this Section 12, an employee
will not be deemed to have terminated employment or failed to remain in the
continuous employ of the Company or of a Participating Subsidiary in the case
of sick leave, military leave, or any other leave of absence approved by the
Board; provided that such leave is for a period of not more than ninety (90)
days or reemployment upon the expiration of such leave is guaranteed by
contract or statute.
13. RETURN OF PAYROLL DEDUCTIONS. In the event a participant's
interest in this Plan is terminated by withdrawal, termination of employment or
otherwise, or in the event this Plan is terminated by the Board, the Company
shall promptly deliver to the participant all payroll deductions credited to
such participant's account. No interest shall accrue on the payroll deductions
of a participant in this Plan.
14. CAPITAL CHANGES. Subject to any required action by the
shareholders of the Company, the number of Ordinary Shares covered by each
option under this Plan which has not yet been exercised and the number of
Ordinary Shares which have been authorized for issuance under this Plan but
have not yet been placed under option (collectively, the "RESERVES"), as well
as the price of each Ordinary Share covered by each option under this Plan
which has not yet been exercised, shall be proportionately adjusted for any
increase or decrease in the number of issued and outstanding Ordinary Shares of
the Company resulting from a stock split or the payment of a stock dividend
(but only on the Ordinary Shares) or any other increase or decrease in the
number of issued and outstanding Ordinary Shares effected without receipt of
any consideration by the Company; provided, however, that (a) conversion of any
convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration" and (b) no such adjustment shall be
made if as a result, the purchase price for each Ordinary Share shall fall
below the par value thereof and if such adjustment would but for this paragraph
(b) result in the purchase price being less than the par value of an Ordinary
Share, the purchase price payable shall be the par value of an Ordinary Share.
Such adjustment shall be made by the Committee, whose determination shall be
final, binding and conclusive. Except as expressly provided herein, no issue
by the Company of shares of any class, or securities convertible into shares of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Ordinary Shares subject to an option.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Committee. The
Committee may, in the exercise of its sole discretion in such instances,
declare that the options under this Plan shall terminate as of a date fixed by
the Committee and give each participant the right to exercise his or her option
as to all of the optioned shares, including shares which would not otherwise be
exercisable. In the event of (i) a merger or consolidation in which the
Company is not the surviving corporation (other than a merger or consolidation
with a wholly- owned subsidiary, a reincorporation of the Company in a
different jurisdiction, or other transaction in which there is no substantial
change in the shareholders of the Company or their relative share holdings and
the options under this Plan are assumed, converted or replaced by the successor
corporation, which assumption will be binding on all participants), (ii) a
merger in which the Company is the surviving corporation but after which the
shareholders of the Company immediately prior to such merger (other than any
shareholder that merges, or which owns or controls another corporation that
merges, with the Company in such merger) cease to own their shares or other
equity interest in the Company, (iii) the sale of substantially all of the
assets of the Company, or (iv) the acquisition, sale, or transfer of more than
50% of the outstanding shares of the Company by tender offer or similar
transaction, each option under this Plan may be assumed or an equivalent option
may be substituted by such successor corporation or a parent or subsidiary of
such successor corporation. In the event such surviving corporation refuses to
assume or substitute options under this Plan, (i) this Plan will terminate upon
the consummation of such transaction, unless otherwise provided by the
Committee, and (ii) the Committee may declare that the options under this Plan
shall terminate as of a date fixed by the Committee, and give each Participant
the right to exercise such participant's option as to all of the optioned
shares. If the Committee makes an option fully exercisable in the event of a
merger, consolidation or sale of assets, the Committee shall notify the
participant that the option shall be fully exercisable for a certain period,
and the option and this Plan will terminate upon the expiration of such period.
The Committee may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the
price per share of Ordinary Shares covered by each outstanding option, in the
event that the Company effects one or more reorganizations, recapitalizations,
rights offerings or other increases or reductions of its outstanding Ordinary
Shares, or in the event of the Company being consolidated with or merged into
any other corporation, provided however, that no such adjustment shall be made
if as a result, the purchase price for each
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Ordinary Share would fall below the par value thereof and if such adjustment
would result in the purchase price being less than the par value of an Ordinary
Share, the purchase price payable shall be the par value of an Ordinary Share.
15. NONASSIGNABILITY. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option
or to receive shares under this Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will or the laws of descent and
distribution) by the participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be void and without effect.
16. REPORTS. Individual accounts will be maintained for each
participant in this Plan. Each participant shall receive promptly after the
end of each Purchase Period a report of his or her account setting forth the
total payroll deductions accumulated, the number of shares purchased, the per
share price thereof and the remaining cash balance, if any, carried forward to
the next Purchase Period or Offering Period, as the case may be.
17. NOTICE OF DISPOSITION. Each participant shall notify the Company
if the participant disposes of any of the shares purchased in any Offering
Period pursuant to this Plan if such disposition occurs within two (2) years
from the Offering Date or within one (1) year from the Purchase Date on which
such shares were purchased (the "NOTICE PERIOD"). Unless such participant is
disposing of any of such shares during the Notice Period, such participant
shall keep the certificates representing such shares in his or her name (and
not in the name of a nominee) during the Notice Period. The Company may, at
any time during the Notice Period, place a legend or legends on any certificate
representing shares acquired pursuant to this Plan requesting the Company's
transfer agent to notify the Company of any transfer of the shares. The
obligation of the participant to provide such notice shall continue
notwithstanding the placement of any such legend on the certificates.
18. NO RIGHTS TO CONTINUED EMPLOYMENT. Neither this Plan nor the
grant of any option hereunder shall confer any right on any employee to remain
in the employ of the Company or any Participating Subsidiary, or restrict the
right of the Company or any Participating Subsidiary to terminate such
employee's employment.
19. EQUAL RIGHTS AND PRIVILEGES. All eligible employees shall have
equal rights and privileges with respect to this Plan so that this Plan
qualifies as an "employee stock purchase plan" within the meaning of Section
423 or any successor provision of the Code and the related regulations. Any
provision of this Plan which is inconsistent with Section 423 or any successor
provision of the Code shall, without further act or amendment by the Company,
the Committee or the Board, be reformed to comply with the requirements of
Section 423. This Section 19 shall take precedence over all other provisions
in this Plan.
20. NOTICES. All notices or other communications by a participant to
the Company under or in connection with this Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
21. TERM; SHAREHOLDER APPROVAL. This Plan will become effective on
the date that it is adopted by the Board. This Plan shall be approved by the
shareholders of the Company, in any manner permitted by applicable corporate
law, within twelve (12) months before or after the date this Plan is adopted by
the Board. No purchase of shares pursuant to this Plan shall occur prior to
such shareholder approval. This Plan shall continue until the earlier to occur
of (a) termination of this Plan by the Board (which termination may be effected
by the Board at any time), (b) issuance of all of the Ordinary Shares reserved
for issuance under this Plan, or (c) ten (10) years from the adoption of this
Plan by the Board.
22. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES.
Shares shall not be issued with respect to an option unless the exercise of
such option and the issuance and delivery of such shares pursuant thereto shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange or automated quotation system upon which the
shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
23. APPLICABLE LAW. The Plan shall be governed by the substantive
laws of Singapore.
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24. AMENDMENT OR TERMINATION OF THIS PLAN. The Board may at any time
amend, terminate or extend the term of this Plan, except that any such
termination cannot affect options previously granted under this Plan, nor may
any amendment make any change in an option previously granted which would
adversely affect the right of any participant, nor may any amendment be made
without approval of the shareholders of the Company obtained in accordance with
Section 21 hereof within twelve (12) months of the adoption of such amendment
(or earlier if required by Section 21) if such amendment would:
(a) increase the number of shares that may be issued under this
Plan; or
(b) change the designation of the employees (or class of
employees) eligible for participation in this Plan.
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