Exhibit 4.2
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 November 17, 2004, as amended by the
Amendment to Indenture, dated as of July 14, 2005 (as amended,
the “Indenture”), relating to the Company’s 6 1/4
% Senior Subordinated Notes due 2014 (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 cumulative effect of
a change in accounting principles shall be excluded, and
(iv) 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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