Exhibit 4.1
SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 2 TO
INDENTURE
SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 2 TO
INDENTURE, dated as of June 19, 2009 (this “Amendment
No. 2 to Indenture”), by and between Flextronics
International Ltd., a company incorporated in Singapore (the
“Company”) and U.S. Bank National Association (as
successor to J.P. Morgan Trust Company, National Association), as
trustee (the “Trustee”).
WITNESSETH:
WHEREAS , the Company and the Trustee are parties to an
Indenture, dated as of May 8, 2003, as amended by the
Amendment to Indenture, dated as of July 14, 2005 (as amended,
the “Indenture”), relating to the Company’s 6 1/2
% Senior Subordinated Notes due 2013 (the
“Notes”);
WHEREAS , Section 9.02 of the Indenture provides
that the Company and the Trustee may, with the consents of Holders
of a majority in aggregate principal amount of the then outstanding
Notes (the “Requisite Consents”), enter into an
amendment for the purpose of amending certain provisions of the
Indenture;
WHEREAS , the Company is conducting an offer to purchase
for cash up to $100,000,000 of the aggregate principal amount
outstanding of the Notes (the “Offer”) and has
solicited (the “Consent Solicitation”) and received the
Requisite Consents to certain amendments to the Indenture, as set
forth in Section 3 of this Amendment No. 2 to Indenture
(the “Amendments”), all upon the terms and subject to
the conditions set forth in an Offer to Purchase and Consent
Solicitation Statement, dated May 29, 2009 (the
“Statement”) and the related Consent and Letter of
Transmittal (together with the Statement, the “Offer
Documents”);
NOW, THEREFORE , in consideration of the premises and the
mutual covenants herein contained and intending to be legally
bound, the parties to this Amendment No. 2 to Indenture hereby
agree as follows:
SECTION 1. Defined Terms .
Capitalized terms used herein and
not otherwise defined herein are used as defined in the
Indenture.
SECTION 2 . Effectiveness of Amendment No. 2 to
Indenture; Operation of Amendments . Upon the execution and
delivery of this Amendment No. 2 to Indenture by the Company
and the Trustee, this Amendment No. 2 to Indenture will become
effective in all respects, except that Section 3 of this
Amendment No. 2 to Indenture will not become operative until
such date and time as the Company certifies to the Trustee that it
has deposited with U.S. Bank National Association, in its capacity
as the depositary and paying agent for purposes of the Offer and
the Consent Solicitation, cash in the amount required to pay the
consideration payable for Notes tendered in the Offer and consents
delivered in the Consent Solicitation, and in each case accepted
for payment by the Company, and accrued and unpaid interest on
tendered and accepted Notes, in accordance with the terms and
conditions of the Offer Documents, and as of such date,
(a) the Indenture shall be amended and supplemented as
provided in Section 3 hereof and otherwise in accordance
herewith, and this Amendment No. 2 to Indenture shall be part
of the terms and conditions of the Indenture for any and all
purposes, and the terms and conditions of both shall be read
together as though they constitute one and the same instrument,
except that in the case of conflict, this Amendment No. 2 to
Indenture will control, and (b) every Holder of Notes
heretofore or hereafter authenticated and delivered under the
Indenture shall be bound by the Indenture as so amended and
supplemented.
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SECTION 3 . Amendments to Indenture
.
3.01
Amendments to Section 1.01 of the Indenture
.
(a) The
definition of “Consolidated Net Income” in the
Indenture is hereby amended in it entirety to read as
follows:
“Consolidated Net Income” means,
with respect to any Person for any period, the aggregate of the Net
Income of such Person and its Restricted Subsidiaries for such
period, on a consolidated basis, determined in accordance with
GAAP; provided that (i) the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for
by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to
the referent Person or a Wholly Owned Restricted Subsidiary
thereof, (ii) the Net Income of any Restricted Subsidiary
shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been
obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that
Subsidiary or its stockholders, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded,
(iv) the cumulative effect of a change in accounting
principles shall be excluded, and (v) solely for purposes of
determining the amount of Restricted Payments permitted under
Section 4.07(A) from and after the Payment Date, the following
items determined in accordance with GAAP shall be excluded from
Consolidated Net Income commencing April 1, 2009, net of
related tax benefits:
(A) all non-cash restructuring
charges;
(B) all non-cash charges relating to the
impairment or write-down of goodwill, intangible assets and
investments and all non-cash charges relating to the amortization
of intangible assets;
(C) all non-cash compensation charges
arising from grants of stock, stock options and other equity-based
awards; and
(D) all non-cash interest expense on
convertible debt issued by the Company or any of its Restricted
Subsidiaries that may be settled in cash and resulting from the
Company’s adoption and application of Financial Accounting
Standards Board Staff Position No. APB 14-1 and any successor
rule, pronouncement or interpretation.
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