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TABLE OF CONTENTS

Table of Contents

As filed with the Securities and Exchange Commission on January 29, 2018

Registration No. 333-            


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


FLEX LTD.
(Exact name of registrant as specified in its charter)


Singapore
(State or other jurisdiction of
incorporation or organization) 		  Not Applicable
(I.R.S. Employer
Identification Number)


2 Changi South Lane
Singapore 486123
(65) 6876 9899
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)


Scott Offer
Executive Vice President and General Counsel
Flex Ltd.
2 Changi South Lane
Singapore 486123
(65) 6876 9899
(Name, address, including zip code, and telephone number, including area code, of agent for service)


Copy to:

Jeffrey N. Ostrager, Esq.
Raymond T. Hum, Esq.
Curtis, Mallet-Prevost, Colt & Mosle LLP
101 Park Avenue
New York, New York 10178
(212) 696-6000


Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.

          If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:     o

          If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box:     ý

          If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

          If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

          If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.     ý

          If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.     o

          Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company" and "emerging growth company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer  ý   Accelerated filer  o   Non-accelerated filer  o
(Do not check if a
smaller reporting company) 		  Smaller reporting company  o

Emerging growth company  o

          If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act.     o


CALCULATION OF REGISTRATION FEE

               
 
Title of Each Class of Securities
to be Registered
  Amount to be Registered(1)
  Proposed Maximum
Offering Price Per
Unit(1)
  Proposed Maximum
Aggregate Offering
Price(1)
  Amount of
Registration Fee(1)
 

Ordinary Shares, no par value

  —   —   —   —
 

Debt Securities

  —   —   —   —

 

(1)
An indeterminate amount of securities of each identified class of securities to be offered at indeterminate prices is being registered pursuant to this registration statement. The registrant is deferring payment of the registration fee pursuant to Rule 456(b) and is omitting this information in reliance on Rule 456(b) and Rule 457(r).

   

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PROSPECTUS

LOGO

Flex Ltd.
(Incorporated in the Republic of Singapore)
(Company Registration Number 199002645H)

Ordinary Shares

Debt Securities


        We or certain selling securityholders may offer and sell from time to time, in one or more offerings, ordinary shares or debt securities or any combination thereof, in one or more series and in amounts, at prices and on terms that will be described in one or more supplements to this prospectus. We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. You should read this prospectus, any prospectus supplement and any free writing prospectus carefully before you invest. This prospectus may not be used to offer or sell any securities unless accompanied by a prospectus supplement.

        Our ordinary shares are quoted on The Nasdaq Global Select Market under the symbol "FLEX." The applicable prospectus supplement will contain information, where applicable, as to any other listing on The Nasdaq Global Select Market or any securities market or other exchange of the securities, if any, covered by the prospectus supplement.


         Investing in our securities involves risks. See "Risk Factors" beginning on page 6 of this prospectus. We may include additional risk factors in a prospectus supplement under the heading "Risk Factors." You should review that section of the prospectus supplement and under similar headings in the documents incorporated by reference in this prospectus or any accompanying prospectus supplement for a discussion of matters that investors in our securities should consider.


         Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.


   

The date of this prospectus is January 29, 2018.

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TABLE OF CONTENTS

 
  Page  

ABOUT THIS PROSPECTUS

    1  

FLEX LTD . 

    2  

WHERE YOU CAN FIND MORE INFORMATION

    2  

INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

    3  

CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS

    4  

ENFORCEMENT OF CIVIL LIABILITIES UNDER UNITED STATES FEDERAL SECURITIES LAWS

    4  

RISK FACTORS

    6  

USE OF PROCEEDS

    6  

RATIO OF EARNINGS TO FIXED CHARGES

    7  

DESCRIPTION OF ORDINARY SHARES

    8  

COMPARISON OF SHAREHOLDER RIGHTS

    12  

DESCRIPTION OF DEBT SECURITIES

    26  

PLAN OF DISTRIBUTION

    27  

SELLING SECURITYHOLDERS

    28  

LEGAL MATTERS

    28  

EXPERTS

    28  


        We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus or in any related prospectus supplement or free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus or any prospectus supplement or in any such free writing prospectus is accurate as of any date other than their respective dates. Our business, financial condition, results of operations and prospects may have changed since those dates.

        The terms "Flex," "the Company," "we," "us," "our" and similar terms as used in this prospectus mean Flex Ltd. and its subsidiaries, unless otherwise indicated or the context otherwise requires. The phrase "this prospectus" refers to this prospectus and any applicable prospectus supplement, unless the context otherwise requires.

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ABOUT THIS PROSPECTUS

        This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the "SEC") utilizing a "shelf" registration process. Under this shelf process, we and/or any selling securityholders to be identified in supplements to this prospectus may sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we and/or the selling securityholders may offer. Each time we and/or the selling securityholders sell securities pursuant to the registration statement of which this prospectus forms a part, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, together with the additional information described under the heading "Where You Can Find More Information."

        This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of any of the securities registered hereby may not be circulated or distributed, nor may any of the securities registered hereby be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the "SFA"), (ii) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275, of the SFA, or (iii) otherwise pursuant to, and in accordance with, the conditions of any other applicable provision of the SFA.

        Where any of the securities registered hereby are subscribed or purchased under Section 275 of the SFA by a relevant person which is:

securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries' rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the securities registered hereby pursuant to an offer made under Section 275 of the SFA except:

        We have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to you.

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FLEX LTD.

        We are a globally-recognized provider of Sketch-to-Scale tm services — innovative design, engineering, manufacturing and supply chain services and solutions — from conceptual sketch to full-scale production. We design, build, ship and service complete packaged consumer and industrial products, from athletic shoes to electronics, for companies of all sizes in various industries and end-markets, through our activities in the following segments:

        Flex Ltd. was incorporated in the Republic of Singapore in May 1990. Our principal corporate office is located at 2 Changi South Lane, Singapore 486123. Our U.S. corporate headquarters is located at 6201 America Center Drive, San Jose, California 95002 U.S.A. Our telephone number is (65) 6876 9899. Our website address is www.flex.com. The information contained on or linked to or from our website is not incorporated by reference into this prospectus or any accompanying prospectus supplement and should not be considered part of this prospectus or any accompanying prospectus supplement.


WHERE YOU CAN FIND MORE INFORMATION

        Flex Ltd. files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any of these documents at the SEC's public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room. Flex Ltd.'s SEC filings are also available to the public on the SEC's website at http://www.sec.gov. Information about us, including Flex Ltd.'s SEC filings, is also available on our website address at www.flex.com. The information contained on or linked to or from our website is not incorporated by reference into this prospectus or any accompanying prospectus supplement and should not be considered part of this prospectus or any accompanying prospectus supplement.

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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

        The SEC allows us to "incorporate by reference" into this prospectus the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, except for any information superseded by information contained directly in this prospectus, any accompanying prospectus supplement, any subsequently filed document deemed incorporated by reference or any free writing prospectus prepared by or on behalf of us. We incorporate by reference into this prospectus the documents listed below and their amendments (other than any information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K unless we specifically state in such Current Report that such information is to be considered "filed" under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or we incorporate it by reference into a filing under the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act) and any future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering under this prospectus:

    •
    our Annual Report for the fiscal year ended March 31, 2017 filed with the SEC on May 16, 2017 (our "2017 10-K");

    •
    those sections of the proxy statement delivered to shareholders in connection with our 2017 Annual General Meeting of Shareholders filed with the SEC on July 5, 2017 incorporated by reference into our 2017 10-K;

    •
    our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2017 filed with the SEC on August 1, 2017 (our "First Quarter 2018 10-Q");

    •
    our Quarterly Report on Form 10-Q for the quarterly period ended September 29, 2017 filed with the SEC on October 30, 2017 (our "Second Quarter 2018 10-Q");

    •
    our Quarterly Report on Form 10-Q for the quarterly period ended December 31, 2017 filed with the SEC on January 29, 2018 (our "Third Quarter 2018 10-Q");

    •
    our Current Reports on Form 8-K filed with the SEC on June 30, 2017, June 30, 2017, August 18, 2017, January 8, 2018 and January 25, 2018 (with respect to Item 2.05 only); and

    •
    the description of our ordinary shares contained in our Registration Statement on Form 8-A/A filed with the SEC on October 23, 2006, pursuant to Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description.

        Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

        Notwithstanding the foregoing, we are not incorporating into this prospectus any document or information deemed to have been furnished and not filed in accordance with SEC rules. You can obtain any of the documents incorporated by reference in this prospectus from the SEC through the SEC's website at the address described under "Where You Can Find More Information." Documents incorporated by reference are also available from us without charge, excluding any exhibits to those documents, unless an exhibit has been specifically incorporated by reference in this prospectus.

        You may request a copy of those documents, at no cost, by writing or telephoning us at:

Flex Ltd.
6201 America Center Drive
San Jose, California 95002 U.S.A.
Telephone: (408) 576-7985

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CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS

        Except for historical information, certain matters contained or incorporated by reference in this prospectus and any accompanying prospectus supplement are, or may be deemed to be forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. The words "will," "may," "designed to," "believe," "should," "anticipate," "plan," "expect," "intend," "estimate" and similar expressions identify forward-looking statements, which speak only as of the date they were made. Because these forward-looking statements are subject to risks and uncertainties, actual results could differ materially from the expectations expressed in the forward-looking statements. Important factors that could cause actual results to differ materially from the expectations reflected in the forward-looking statements include the risks identified in any accompanying prospectus supplement and those described in Item 1A, "Risk Factors" and Item 7, "Management's Discussion and Analysis of Financial Condition and Results of Operations" in our 2017 10-K, as updated by our First Quarter 2018 10-Q, Second Quarter 2018 10-Q and Third Quarter 2018 10-Q and by annual, quarterly and other reports and documents we file with the SEC after the date of this prospectus and that are incorporated by reference herein or in the applicable prospectus supplement. In addition, new risks emerge from time to time and it is not possible for management to predict all such risk factors or to assess the impact of such risk factors on our business. Given these risks and uncertainties, the reader should not place undue reliance on these forward-looking statements. We claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 for our forward-looking statements. We disclaim any obligation to update information contained in these forward-looking statements whether as a result of new information, future events, or otherwise, except as required by law.

        Although we undertake no obligation to revise or update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law, you are advised to consult any additional disclosures we make in our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC. See "Where You Can Find More Information."


ENFORCEMENT OF CIVIL LIABILITIES UNDER UNITED STATES FEDERAL SECURITIES LAWS

        We are incorporated in Singapore under the Companies Act, Chapter 50 of Singapore (the "Singapore Companies Act"). Some of our officers and directors reside outside the United States and a substantial portion of our assets are located outside the United States. As a result, it may not be possible for investors to effect service of process within the United States upon us or to enforce against us in United States courts judgments obtained in such courts predicated upon the civil liability provisions of the federal securities laws of the United States. Judgments of United States courts based upon the civil liability provisions of the federal securities laws of the United States are not directly enforceable in Singapore courts and there can be no assurance as to whether Singapore courts will enter judgments in original actions brought in Singapore courts based solely upon the civil liability provisions of the federal securities laws of the United States.

        There is uncertainty as to whether judgments of courts in the United States based upon the civil liability provisions of the federal securities laws of the United States would be recognized or enforceable in Singapore courts, and there is doubt as to whether Singapore courts would enter judgments in original actions brought in Singapore courts based solely upon the civil liability provisions of the federal securities laws of the United States. A final and conclusive judgment in the federal or state courts of the United States under which a fixed sum of money is payable, other than a sum payable in respect of taxes, fines, penalties or similar charges, may be subject to enforcement proceedings as a debt in the courts of Singapore under the common law doctrine of obligation. In addition, Singapore courts would not recognize or enforce judgments against us, our directors and officers to the extent that the judgment is punitive or penal. It is uncertain as to whether a judgment of

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the courts of the United States under the civil liability provisions of the federal securities law of the United States would be determined by the Singapore courts to be or not be punitive or penal in nature. Such a determination has yet to be made by any Singapore court. The Singapore courts also may not recognize or enforce a foreign judgment if the foreign judgment is inconsistent with a prior local judgment, contravenes public policy, or amounts to the direct or indirect enforcement of a foreign penal, revenue or other public law.

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RISK FACTORS

        Our business is subject to uncertainties and risks. You should carefully consider and evaluate all of the information included and incorporated by reference in this prospectus, including the risk factors incorporated by reference from, and discussed in Part I, "Item 1A. Risk Factors" in our 2017 10-K, as updated by our First Quarter 2018 10-Q, Second Quarter 2018 10-Q and Third Quarter 2018 10-Q and other filings we make with the SEC. It is possible that our business, financial condition, liquidity or results of operations could be materially adversely affected by any of these risks. The applicable prospectus supplement for any securities we may offer and any applicable free writing prospectus may contain a discussion of additional risks applicable to an investment in us and the particular type of securities we are offering under that prospectus supplement. The risks described in our filings with the SEC, the applicable prospectus supplement or any applicable free writing prospectus are not the only risks facing us. Additional risks and uncertainties not currently known to us or that we currently deem to be not material also may materially and adversely affect our business, financial condition and/or operating results.


USE OF PROCEEDS

        Unless otherwise indicated in the applicable prospectus supplement and/or free writing prospectus, we will use the net proceeds from the sale of our securities offered by this prospectus for general corporate and working capital purposes. Pending these uses, we may invest the net proceeds temporarily. If we decide to use the net proceeds from a particular offering of securities for a specific purpose, we will describe that purpose in the applicable prospectus supplement and/or free writing prospectus.

        We will not receive any proceeds from sales of securities offered by any selling securityholders under this prospectus.

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RATIO OF EARNINGS TO FIXED CHARGES

        For purposes of calculating the ratio of earnings to fixed charges, earnings is the amount resulting from (1) adding (a) pretax income from continuing operations, before adjustment for income or loss from equity investees, (b) fixed charges, (c) amortization of capitalized interest and (d) distributed income of equity investees and (2) subtracting interest capitalized. For purposes of calculating the ratio of earnings to fixed charges, fixed charges is the sum of (x) interest expensed and capitalized, (y) amortized premiums, discounts and capitalized expenses related to indebtedness and (z) an estimate of interest within rental expense. Our ratio of earnings to fixed charges was as follows for the respective periods indicated:

Fiscal Year Ended March 31,    
 
  Nine Months Ended
December 31, 2017 		 
2013
  2014   2015   2016   2017  
  5.5x     5.7x     9.3x     5.4x     4.3x     6.4x  
​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​

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DESCRIPTION OF ORDINARY SHARES

        The following description of our ordinary shares, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the ordinary shares that we may offer from time to time pursuant to this prospectus. While the terms we have summarized below will apply generally to any future ordinary shares that we and certain securityholders may offer, we will describe the particular terms of any offering in more detail in the applicable prospectus supplement. The following description of our ordinary shares and provisions of our Constitution are summaries and are qualified in its entirety by reference to applicable Singapore law and our Constitution, a copy of which has been filed as Exhibit 3.01 to our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2016 filed with the SEC on October 31, 2016. A copy of our Constitution is also available for inspection at our registered office in Singapore.

        References to "Flex," "we," "us" and "our" in this "Description of Ordinary Shares" are only to Flex Ltd. and not to any of its subsidiaries.

Ordinary Shares

        Our share capital consists of ordinary shares, with no par value per ordinary share. There is no authorized share capital under Singapore law. There is a provision in our Constitution to enable us to issue shares with preferred, deferred or other special rights or such restrictions whether in regard to dividend, voting, return of capital or otherwise as our directors may determine, subject to the provisions of the Singapore Companies Act and every other act for the time being in force concerning companies and affecting our company (collectively, the "Statutes") and our Constitution and without prejudice to any special right previously conferred on the holders of any existing shares or class of shares. All ordinary shares presently issued are fully paid and existing shareholders are not subject to any calls on ordinary shares. All ordinary shares are in registered form. We cannot, except in the circumstances permitted by the Singapore Companies Act, grant any financial assistance for the acquisition or proposed acquisition of our own ordinary shares.

New Shares

        Under applicable Singapore law and our Constitution, new shares may be issued only with the prior approval from our shareholders in a general meeting. General approval may be sought from our shareholders in a general meeting for the issue of shares. Approval, if granted, will lapse at the earlier to occur of:

        Subject to this approval, the provisions of the Statutes and our Constitution, the directors may allot and issue new shares to such persons on such terms and conditions and with the rights and privileges annexed thereto as such general meeting resolving upon the creation thereof shall direct and if no direction be given as the directors shall determine.

Shareholders

        Only persons who are registered in our Register of Members are recognized under Singapore law as shareholders of our company with legal standing to institute shareholder actions against us or otherwise seek to enforce their rights as shareholders. We may close the Register of Members at any

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time and for one or more periods, but the register may not be closed for an aggregate of more than thirty days in any calendar year.

Transfer of Ordinary Shares

        Subject to applicable securities laws in relevant jurisdictions and our Constitution, our ordinary shares are freely transferable. The directors may in their absolute discretion decline to register any transfer of shares on which we have a lien and, in the case of shares not fully paid up, may refuse to register a transfer to a transferee of whom they do not approve, provided, however, that as required by the Singapore Companies Act the directors shall, within 30 days beginning with the day on which the application for a transfer of shares was made, serve a notice in writing to the applicant stating the facts which are considered to justify the refusal. Shares may be transferred by a duly signed instrument of transfer in the usual common form or in any other form which the directors may approve. The directors may decline to register any instrument of transfer unless, among other things, it is presented for registration together with a certificate of payment of stamp duty (if any), the share certificate(s) to which the transfer relates and such other evidence as they may reasonably require to show the right of the transferor to make the transfer. We will replace lost or destroyed certificates for shares upon notice to us and upon, among other things, the applicant furnishing evidence and indemnity as the directors may require and the payment of all applicable fees.

Re-election of Directors

        Under article 94 of our Constitution, at each annual general meeting, one-third of the directors, or, if their number is not a multiple of three, then the number nearest to but not more than one-third of the directors, are required to retire from office by rotation. Under article 95 of our Constitution, the directors required to retire in each year are those who have been in office longest since their last re-election or appointment. As between persons who became or were last re-elected directors on the same day, those required to retire are (unless they otherwise agree among themselves) determined by lot. Retiring directors are eligible for re-election. Under article 90 of our Constitution, any director holding office as a Chief Executive Officer (or an equivalent position) shall not, unless our board of directors determines otherwise, be subject to retirement by rotation or be taken into account in determining the number of directors to retire by rotation. Under article 100 of our Constitution, any director appointed by our board of directors either to fill a casual vacancy or as an additional director is eligible for re-election at the next annual general meeting, but shall not be taken into account in determining the number of directors required to retire by rotation at that annual general meeting.

Shareholders' Meetings

        We are required to hold an annual general meeting each year and not more than 15 months after the holding of the last preceding annual general meeting. Under our Constitution, any general meeting other than the annual general meeting is called an "extraordinary general meeting". The directors may convene an extraordinary general meeting whenever they think fit, and they must also do so upon the written request of shareholders representing not less than one-tenth of the paid-up shares as at the date of the deposit of the written request (disregarding paid-up shares held as treasury shares) carries the right of voting at general meetings. In addition, two or more shareholders holding not less than one-tenth of our total number of issued shares (excluding treasury shares) may call a meeting of our shareholders.

        Unless otherwise required by law or by our Constitution, voting at general meetings is by ordinary resolution, requiring the affirmative vote of a simple majority of the total votes attached to all the fully paid-up shares which are represented at the meeting (of which at least fourteen days' written notice is given) and voting on such resolution in person or by proxy. An ordinary resolution suffices, for example, for appointments of directors. A special resolution, requiring an affirmative vote of a majority

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of not less than three-fourths of the total votes attached to all the fully paid-up shares which are represented at the meeting (of which not less than 21 days' written notice specifying the intention to propose the resolution as a special resolution has been duly given) and voting on such resolution in person or by proxy, is necessary for certain matters under Singapore law, such as an alteration of our Constitution.

Voting Rights

        Voting at any meeting of shareholders is by a show of hands unless a poll is duly demanded before or on the declaration of the result of the show of hands. If voting is by a show of hands, every shareholder who is entitled to vote and who is present in person or by proxy or attorney or, in the case of a corporation, by a representative at the meeting has one vote. On a poll, every shareholder who is present in person or by proxy or by attorney or, in the case of a corporation, by a representative, has one vote for every share of which such shareholder holds or represents. A poll may be demanded by any of:

Dividends

        At a general meeting, our shareholders may declare dividends, but no dividend will be payable in excess of the amount recommended by the directors. The directors may also declare an interim dividend. No dividend may be paid except out of our profits. Except as otherwise may be provided in special rights as to dividends specified in the terms of issue of any shares (no such shares currently being in issue), all dividends are paid pro rata among the shareholders. To date, we have not declared any cash dividends on our ordinary shares and have no current plans to pay cash dividends in the foreseeable future.

Bonus and Rights Issues

        In a general meeting, our shareholders may, upon the recommendation of the directors, by ordinary resolution:

        The directors may also issue to shareholders rights to take up additional shares, in proportion to their shareholdings. These rights are subject to any conditions attached to the issue and the regulations of any stock exchange on which the ordinary shares are listed.

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Takeovers

        The acquisition of our ordinary shares is regulated by the SFA and the Singapore Code on Take-overs and Mergers.

        Under the Singapore Code on Take-overs and Mergers, where:

such person is required to extend a mandatory take-over offer for the remaining voting shares of the company. The Securities Industry Council is empowered to waive compliance with this requirement. Subject to certain exceptions, a mandatory take-over offer made must be in cash or be accompanied by a cash alternative at not less than the highest price paid by the offeror or any party acting in concert with such person for voting rights of the offeree company during the offer period and within six months prior to its commencement.

Liquidation or Other Return of Capital

        On a winding-up or other return of capital, subject to any special rights attaching to any other class of shares, holders of ordinary shares will be entitled to participate in any surplus assets in proportion to their shareholdings.

Indemnity

        As permitted by the laws of Singapore, our Constitution provides that, subject to the Statutes, our directors and officers will be indemnified by our company against all costs, charges, losses, expenses and liabilities incurred or to be incurred by him or her in the execution and discharge of his or her duties (including, without limitation, where he or she serves at the request of the registrant as a director, officer, employee or agent of another corporation, partnership, joint venture or other enterprise) or in relation thereto. Except as permitted under the Singapore Companies Act, directors and officers may not be indemnified by our company against any liability which by law would otherwise attach to them relating to any negligence, default, breach of duty or breach of trust of which they may be guilty in relation to our company.

Limitations on Rights to Hold or Vote Ordinary Shares

        There are no limitations imposed by the laws of Singapore or by our Constitution on the right of non-resident shareholders to hold or vote ordinary shares.

Transfer Agent

        Our transfer agent is Computershare Investor Services, P.O. Box 30170, College Station, Texas 77842-3170.

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COMPARISON OF SHAREHOLDER RIGHTS

        We are incorporated under the laws of Singapore. The following discussion summarizes material differences between the rights of holders of our ordinary shares and the rights of holders of the common stock of a typical corporation incorporated under the laws of the state of Delaware which result from differences in governing documents and the laws of Singapore and Delaware. For purposes of this section, we have summarized the Singapore Companies Act as in effect as of the date hereof.

        This discussion does not purport to be a complete or comprehensive statement of the rights of holders of our ordinary shares under applicable law in Singapore and our Constitution or the rights of holders of the common stock of a typical corporation under applicable Delaware law and a typical certificate of incorporation and bylaws.

        References to "Flex," "we," "us" and "our" in this "Comparison of Shareholder Rights" are only to Flex Ltd. and not to any of its subsidiaries.

Delaware   Singapore—Flex Ltd.
Board of Directors

A typical certificate of incorporation and bylaws would provide that the number of directors on the board of directors will be fixed from time to time by a vote of the majority of the authorized directors. Under Delaware law, a board of directors can be divided into classes and cumulative voting in the election of directors is only permitted if expressly authorized in a corporation's certificate of incorporation.
 
The constitution of companies will typically state the minimum and maximum number of directors as well as provide that the number of directors may be increased or reduced by shareholders via ordinary resolution passed at a general meeting, provided that the number of directors following such increase or reduction is within the maximum and minimum number of directors provided in our Constitution and the Singapore Companies Act, respectively. Our Constitution provides that the number of directors shall not be less than two nor, unless otherwise determined by our company in a general meeting, more than eleven. Under the Singapore Companies Act, the minimum number of directors shall be at least one director who is ordinarily resident in Singapore.

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Limitation on Personal Liability of Directors

A typical certificate of incorporation provides for the elimination of personal monetary liability of directors for breach of fiduciary duties as directors to the fullest extent permissible under the laws of Delaware, except for liability (i) for any breach of a director's loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law (relating to the liability of directors for unlawful payment of a dividend or an unlawful stock purchase or redemption) or (iv) for any transaction from which the director derived an improper personal benefit. A typical certificate of incorporation would also provide that if the Delaware General Corporation Law is amended so as to allow further elimination of, or limitations on, director liability, then the liability of directors will be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law as so amended.

 
Under the Singapore Companies Act, any provision that purports to exempt a director or officer of a company or by which a company directly or indirectly provides an indemnity for a director or officer of the company against any liability attaching to him or her in connection with any negligence, default, breach of duty or breach of trust in relation to the company continues to be void except that, in addition to purchasing and maintaining for any director and officer insurance against any liability attaching to such director or officer in connection with any negligence, default, breach of duty or breach of trust in relation to the company, a company may indemnify such director or officer against any liability incurred by the director or officer to a person other than the company, except when the indemnity is against:

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any liability of the director or officer to pay (i) a fine in criminal proceedings, or (ii) a penalty sum payable to a regulatory authority for noncompliance with any requirement of a regulatory nature; or

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any liability incurred by the director or officer (i) in defending criminal proceedings in which he or she is convicted, (ii) in defending civil proceedings brought by the company or a related company (i.e. the holding company, subsidiary or subsidiary of a common holding company) in which judgment is given against such director or officer; or (iii) in connection with an application under Section 76A(13) or Section 391 of the Singapore Companies Act in which the court refuses to grant him or her relief.

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Interested Shareholders

Section 203 of the Delaware General Corporation Law generally prohibits a Delaware corporation from engaging in specified corporate transactions (such as mergers, stock and asset sales, and loans) with an "interested stockholder" for three years following the time that the stockholder becomes an interested stockholder. Subject to specified exceptions, an "interested stockholder" is a person or group that owns 15% or more of the corporation's outstanding voting stock (including any rights to acquire stock pursuant to an option, warrant, agreement, arrangement or understanding, or upon the exercise of conversion or exchange rights, and stock with respect to which the person has voting rights only), or is an affiliate or associate of the corporation and was the owner of 15% or more of the voting stock at any time within the previous three years.

A Delaware corporation may elect to "opt out" of, and not be governed by, Section 203 through a provision in either its original certificate of incorporation, or an amendment to its original certificate or bylaws that was approved by majority stockholder vote.
 
There are no comparable provisions in Singapore with respect to public companies which are not listed on the Singapore Exchange Securities Trading Limited.

Removal of Directors

A typical certificate of incorporation and bylaws provide that, subject to the rights of holders of any preferred stock, directors may be removed at any time by the affirmative vote of the holders of at least a majority, or in some instances a supermajority, of the voting power of all of the then outstanding shares entitled to vote generally in the election of directors, voting together as a single class. A certificate of incorporation could also provide that such a right is only exercisable when a director is being removed for cause (removal of a director only for cause is the default rule in the case of a classified board).
 
According to the Singapore Companies Act, directors of a Singapore public company may be removed before expiration of their term of office with or without cause by ordinary resolution (i.e., a resolution which is passed by a simple majority of those shareholders present and voting in person or by proxy). Notice of the intention to move such a resolution has to be given to the company not less than 28 days before the meeting at which it is moved. Where any director removed in this manner was appointed to represent the interests of any particular class of shareholders or debenture holders, the resolution to remove such director will not take effect until such director's successor has been appointed.

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Delaware   Singapore—Flex Ltd.
Filling Vacancies on the Board of Directors

A typical certificate of incorporation and bylaws provide that, subject to the rights of the holders of any preferred stock, any vacancy, whether arising through death, resignation, retirement, disqualification, removal, an increase in the number of directors or any other reason, may be filled by a majority vote of the remaining directors, even if such directors remaining in office constitute less than a quorum, or by the sole remaining director. Any newly elected director usually holds office for the remainder of the full term expiring at the annual meeting of stockholders at which the term of the class of directors to which the newly elected director has been elected expires.
 
The constitution of a Singapore public company typically provides that the directors have the power to appoint any person to be a director, either to fill a vacancy or as an addition to the existing directors, provided that the total number of directors will not at any time exceed the maximum number fixed in the constitution. Any newly elected director shall hold office until the next following annual general meeting, where such director will then be eligible for re-election. Our Constitution provides that the directors may appoint any person to be a director as an additional director or to fill a vacancy. Any person so appointed will only hold office until the next annual general meeting, and will then be eligible for re-election by ordinary resolution.

Amendment of Governing Documents

Amendment of Certification of Incorporation and Bylaws

Under the Delaware General Corporation Law, amendments to a corporation's certificate of incorporation require the approval of stockholders holding a majority of the outstanding shares entitled to vote on the amendment. If a class vote on the amendment is required by the Delaware General Corporation Law, a majority of the outstanding stock of the class is required, unless a greater proportion is specified in the certificate of incorporation or by other provisions of the Delaware General Corporation Law. Under the Delaware General Corporation Law, the board of directors may amend bylaws if so authorized in the certificate of incorporation. The stockholders of a Delaware corporation also have the power to amend bylaws.
 
Alteration to Constitution

Our Constitution may be altered by special resolution (i.e., a resolution passed by majority of not less than three-fourths of the shares entitled to vote, present in person or by proxy at a meeting). The board of directors has no right to amend the constitution.

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Delaware   Singapore—Flex Ltd.
Meetings of Shareholders

Annual and Special Meetings

Typical bylaws provide that annual meetings of stockholders are to be held on a date and at a time fixed by the board of directors. Under the Delaware General Corporation Law, a special meeting of stockholders may be called by the board of directors or by any other person authorized to do so in the certificate of incorporation or the bylaws.

Quorum Requirements

Under the Delaware General Corporation Law, a corporation's certificate of incorporation or bylaws can specify the number of shares which constitute the quorum required to conduct business at a meeting, provided that in no event shall a quorum consist of less than one-third of the shares entitled to vote at a meeting.
 
Annual General Meetings

All companies are required to hold an annual general meeting once every calendar year. The first annual general meeting must be held within 18 months of the company's incorporation and subsequently, not more than 15 months may elapse between annual general meetings.

Extraordinary General Meetings

Any general meeting other than the annual general meeting is called an "extraordinary general meeting". Two or more shareholders holding not less than 10% of the total number of issued shares (excluding treasury shares) may call an extraordinary general meeting.

Notwithstanding anything in the constitution, the directors are required to convene a general meeting if required to do so by requisition (i.e.,  written notice to directors requiring that a meeting be called) by shareholder(s) holding not less than 10% of the paid-up shares of the company carrying voting rights. Our Constitution provides that the directors may, whenever they think fit, convene an extraordinary general meeting.

Quorum Requirements

Our Constitution provides that the quorum at any general meeting shall be holders holding in aggregate not less than 33 1 / 3 % of the total number of issued and fully paid shares in the capital of our company for the time being, present in person or by proxy.

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Indemnification of Officers, Directors and Employees

Under the Delaware General Corporation Law, subject to specified limitations in the case of derivative suits brought by a corporation's stockholders in its name, a corporation may indemnify any person who is made a party to any third-party action, suit or proceeding on account of being a director, officer, employee or agent of the corporation (or was serving at the request of the corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise) against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit or proceeding through, among other things, a majority vote of a quorum consisting of directors who were not parties to the suit or proceeding, if the person:
 
As permitted by the laws of Singapore, our Constitution provides that, subject to the Statutes, our directors and officers will be indemnified by our company against all costs, charges, losses, expenses and liabilities incurred or to be incurred by him or her in the execution and discharge of his or her duties (including, without limitation, where he or she serves at the request of the registrant as a director, officer, employee or agent of another corporation, partnership, joint venture or other enterprise) or in relation thereto. Except as permitted under the Singapore Companies Act, directors and officers may not be indemnified by our company against any liability which by law would otherwise attach to them relating to any negligence, default, breach of duty or breach of trust of which they may be guilty in relation to our company.

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acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation or, in some circumstances, at least not opposed to its best interests; and

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in a criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

 


Delaware corporate law permits indemnification by a corporation under similar circumstances for expenses (including attorneys' fees) actually and reasonably incurred by such persons in connection with the defense or settlement of a derivative action or suit, except that no indemnification may be made in respect of any claim, issue or matter as to which the person is adjudged to be liable to the corporation unless the Delaware Court of Chancery or the court in which the action or suit was brought determines upon application that the person is fairly and reasonably entitled to indemnity for the expenses which the court deems to be proper.
 
 

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To the extent a director, officer, employee or agent is successful in the defense of such an action, suit or proceeding, the corporation is required by Delaware corporate law to indemnify such person for reasonable expenses incurred thereby. Expenses (including attorneys' fees) incurred by such persons in defending any action, suit or proceeding may be paid in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of that person to repay the amount if it is ultimately determined that that person is not entitled to be so indemnified.    

Shareholder Approval of Business Combinations

Generally, under the Delaware General Corporation Law, completion of a merger, consolidation, or the sale, lease or exchange of substantially all of a corporation's assets or dissolution requires approval by the board of directors and by a majority (unless the certificate of incorporation requires a higher percentage) of outstanding stock of the corporation entitled to vote.

The Delaware General Corporation Law also requires a special vote of stockholders in connection with a business combination with an "interested stockholder" as defined in section 203 of the Delaware General Corporation Law. See "—Interested Shareholders" above.

 
The Singapore Companies Act mandates that specified corporate actions require approval by the shareholders in a general meeting, notably:

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notwithstanding anything in the company's constitution, directors are not permitted to carry into effect any proposals for disposing of the whole or substantially the whole of the company's undertaking or property unless those proposals have been approved by shareholders in a general meeting;

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subject to the constitution of each amalgamating company, an amalgamation proposal must be approved by the shareholders of each amalgamating company via special resolution at a general meeting; and

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notwithstanding anything in the company's constitution, the directors may not, without the prior approval of shareholders, issue shares, including shares being issued in connection with corporate actions.


Shareholder Action Without a Meeting

Under the Delaware General Corporation Law, unless otherwise provided in a corporation's certificate of incorporation, any action that may be taken at a meeting of stockholders may be taken without a meeting, without prior notice and without a vote if the holders of outstanding stock, having not less than the minimum number of votes that would be necessary to authorize such action, consent in writing. It is not uncommon for a corporation's certificate of incorporation to prohibit such action.
 
There are no equivalent provisions in respect of public companies which are not listed in Singapore. As a result, shareholder action by written consent is not permitted.

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Delaware   Singapore—Flex Ltd.
Shareholder Suits

Under the Delaware General Corporation Law, a stockholder may bring a derivative action on behalf of the corporation to enforce the rights of the corporation. An individual also may commence a class action suit on behalf of himself or herself and other similarly situated stockholders where the requirements for maintaining a class action under the Delaware General Corporation Law have been met. A person may institute and maintain such a suit only if such person was a stockholder at the time of the transaction which is the subject of the suit or his or her shares thereafter devolved upon him or her by operation of law. Additionally, under Delaware case law, the plaintiff generally must be a stockholder not only at the time of the transaction which is the subject of the suit, but also through the duration of the derivative suit. The Delaware General Corporation Law also requires that the derivative plaintiff make a demand on the directors of the corporation to assert the corporate claim before the suit may be prosecuted by the derivative plaintiff, unless such demand would be futile.
 
Standing

Only registered shareholders of our company reflected in our shareholder register are recognized under Singapore law as shareholders of our company. As a result, only registered shareholders have legal standing to institute shareholder actions against us or otherwise seek to enforce their rights as shareholders. Holders of book-entry interests in our shares will be required to exchange their book-entry interests for certificated shares and to be registered as shareholders in our shareholder register in order to institute or enforce any legal proceedings or claims against us, our directors or our executive officers relating to shareholder rights. A holder of book-entry interests may become a registered shareholder of our company by exchanging its interest in our shares for certificated shares and being registered in our shareholder register.

Derivative Actions

The Singapore Companies Act has a provision which provides a mechanism enabling shareholders to apply to the court for leave to bring a derivative action on behalf of the company. Derivative actions are also allowed as a common law action.

Applications are generally made by shareholders of the company or individual directors, but courts are given the discretion to allow such persons as they deem proper to apply (e.g., beneficial owner of shares) in the appropriate circumstances.

 
 
It should be noted that this provision of the Singapore Companies Act is primarily used by minority shareholders to bring an action in the name and on behalf of the company or intervene in an action to which the company is a party for the purpose of prosecuting, defending or discontinuing the action on behalf of the company. Prior to commencing a derivative action, the court will need to be satisfied that, the applicant has given 14 days' notice to the directors of the company of its intention to apply to the court for leave to bring an action or arbitration if the directors of the company do not bring, diligently prosecute or defend or discontinue the

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    action or arbitration, the applicant is acting in good faith, and it appears to be prima facie in the interests of the company that the action or arbitration be brought, prosecuted, defended or discontinued.

Class Actions

The concept of class action suits, which allows individual shareholders to bring an action seeking to represent the class or classes of shareholders, does not exist in Singapore. However, it is possible as a matter of procedure for a number of shareholders to lead an action and establish liability on behalf of themselves and other shareholders who join in or who are made parties to the action. These shareholders are commonly known as "lead plaintiffs."

Distributions and Dividends; Repurchases and Redemptions

The Delaware General Corporation Law permits a corporation to declare and pay dividends out of statutory surplus or, if there is no surplus, out of net profits for the fiscal year in which the dividend is declared and/or for the preceding fiscal year as long as the amount of capital of the corporation following the declaration and payment of the dividend is not less than the aggregate amount of the capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets.

Under the Delaware General Corporation Law, any corporation may purchase or redeem its own shares, except that generally it may not purchase or redeem these shares if the capital of the corporation is impaired at the time or would become impaired as a result of the redemption. A corporation may, however, purchase or redeem out of capital shares that are entitled upon any distribution of its assets to a preference over another class or series of its shares if the shares are to be retired and the capital reduced.

 
The Singapore Companies Act provides that no dividends can be paid to shareholders except out of profits.

The Singapore Companies Act does not provide a definition on when profits are deemed to be available for the purpose of paying dividends and this is accordingly governed by case law.

Our Constitution provides that no dividend shall be payable except out of the profits of our company, or in excess of the amount recommended by our directors.

Acquisition of a Company's Own Shares

The Singapore Companies Act generally prohibits a company from acquiring its own shares subject to certain exceptions. Any contract or transaction by which a company acquires or transfers its own shares in contravention of the said prohibition is void. However, provided that it is expressly permitted to do so by its constitution and subject to the special conditions of each permitted acquisition contained in the Singapore Companies Act, a company may:

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make an off-market purchase of its own shares in accordance with an equal access scheme authorized in advance at a general meeting;

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make a selective off-market purchase of its own shares in accordance with an agreement authorized in advance at a general meeting by a special resolution where persons whose shares are to be acquired and their associated persons have abstained from voting; and

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make an acquisition of its own shares under a contingent purchase contract which has been authorized in advance at a general meeting by a special resolution,


 
 
provided that the total number of ordinary shares that may be acquired by a company in a relevant period may not exceed 20% of the total number of ordinary shares in that class as of the date of the resolution to acquire the shares, whichever is higher. Where, however, a company has reduced its share capital by a special resolution or a Singapore court made an order to such effect, the total number of ordinary shares in any class shall be taken to be the total number of ordinary shares in that class as altered by the special resolution or the order of the court. Payment must be made out of the company's distributable profits or capital, provided that the company is solvent.

A company may also purchase its own shares by an order of a Singapore court.

Our Constitution provides that subject to the Singapore Companies Act, our company may purchase or otherwise acquire its issued shares on such terms and in such manner as our company may from time to time think fit. If required by the Singapore Companies Act, any share that is so purchased or acquired by our company shall, unless held in treasury in accordance with the Singapore Companies Act, be deemed to be cancelled immediately on purchase or acquisition by our company.

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Delaware   Singapore—Flex Ltd.
    Redemption of preference shares

A company may redeem redeemable preference shares, provided that preference shares shall not be redeemed out of capital unless all the directors make a solvency statement in relation to such redemption in accordance with the Singapore Companies Act. In addition, certain filings are also required to be made to the Registrar of Companies in connection with such redemption of redeemable preference shares.

  Financial Assistance for the Acquisition of Shares

A public company may not give financial assistance to any person whether directly or indirectly for the purpose of:

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the acquisition or proposed acquisition of shares in the company or units of such shares; or

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the acquisition or proposed acquisition of shares in its holding company or ultimate holding company or units of such shares,


 
 
subject to certain exceptions.

Financial assistance may take the form of a loan, the giving of a guarantee, the provision of security, the release of an obligation, the release of a debt or otherwise. However, it should be noted that a company may provide financial assistance for the acquisition of its shares or shares in its holding company or ultimate holding company if (i) the giving of the financial assistance does not materially prejudice the interests of the company or its shareholders or the company's ability to pay its creditors, and the board of directors approves the giving of the financial assistance in accordance with the provisions of the Singapore Companies Act; or (ii) it complies with the requirements (including but not limited to approval of the shareholders by special resolution) set out in the Singapore Companies Act. Our Constitution provides that, except as is otherwise expressly permitted by the Singapore Companies Act, our company shall not give any financial assistance for the purpose of, or in connection with, the acquisition or proposed acquisition of shares or units of shares in our company or our holding company.

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Delaware   Singapore—Flex Ltd.
Transactions with Officers or Directors

Under the Delaware General Corporation Law, some contracts or transactions in which one or more of a corporation's directors has an interest are not void or voidable because of such interest provided that some conditions, such as obtaining the required approval and fulfilling the requirements of good faith and full disclosure, are met. Under the Delaware General Corporation Law, either (a) the stockholders or the board of directors must approve in good faith any such contract or transaction after full disclosure of the material facts or (b) the contract or transaction must have been "fair" as to the corporation at the time it was approved. If board approval is sought, the contract or transaction must be approved in good faith by a majority of disinterested directors after full disclosure of material facts, even though less than a majority of a quorum.
 
Under the Singapore Companies Act, directors and chief executive officer are not prohibited from dealing with the company, but where they have an interest in a transaction with the company, that interest must be disclosed to the board of directors. In particular, every director and chief executive officer who is in any way, whether directly or indirectly, interested in a transaction or proposed transaction with the company must, as soon practicable after the relevant facts have come to such director's or chief executive officer's knowledge, declare the nature of such director's or chief executive officer's interest at a board of directors' meeting or by sending a written notice to the company containing details on the nature, character and extent of his interest in the transaction or proposed transaction with the company.

 
 
There is however no requirement for disclosure where the interest of the director or chief executive officer consists only of being a member or creditor of a corporation which is interested in the transaction or proposed transaction with the company if the interest may properly be regarded as immaterial. Where the transaction or proposed transaction relates to any loan to the company, a director or chief executive officer shall not be deemed to be interested in the transaction or proposed transaction by reason only that the director or chief executive officer, as applicable, has guaranteed the repayment of such loan, unless the constitution provides otherwise.

Every director and chief executive officer who holds any office or possesses any property which directly or indirectly might create duty or interests in conflict with their duties or interests as director or chief executive officer, as applicable, is required to declare at a meeting of directors the fact and the nature, character and extent of the conflict or send a written notice to the company setting out the fact and the nature, character and extent of the conflict.

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Delaware   Singapore—Flex Ltd.
    The Singapore Companies Act extends the scope of this statutory duty of a director and chief executive officer to disclose any interests by pronouncing that an interest of a member of a director's or chief executive officer's family (including spouse, son, adopted son, step-son, daughter, adopted daughter and step-daughter) will be treated as an interest of the director or chief executive officer, as applicable.

Further, where the transaction or proposed transaction is to be made with or for the benefit of a related company, a director or chief executive officer shall not be deemed to be interested in the transaction or proposed transaction by reason only that such director or chief executive officer, as applicable, is also a director or chief executive officer, as applicable, of that company, unless the constitution provides otherwise.

Subject to specified exceptions, the Singapore Companies Act prohibits a Singapore company from making a loan or quasi-loan to its directors or to directors of a related corporation, or giving a guarantee or security in connection with such a loan or quasi-loan. Companies are also prohibited from making loans to its directors' spouse or children (whether adopted or natural or step-children), or giving a guarantee or security in connection with such a loan or entering into a credit transaction by the company as creditor for the benefit of any director or director of a related corporation.

Dissenters' Rights

Under the Delaware General Corporation Law, a stockholder of a corporation participating in some types of major corporate transactions may, under varying circumstances, be entitled to appraisal rights pursuant to which the stockholder may receive cash in the amount of the fair market value of his or her shares in lieu of the consideration he or she would otherwise receive in the transaction.
 
There are no equivalent provisions in Singapore under the Singapore Companies Act.

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Cumulative Voting

Under the Delaware General Corporation Law, a corporation may adopt in its bylaws that its directors shall be elected by cumulative voting. When directors are elected by cumulative voting, a stockholder has the number of votes equal to the number of shares held by such stockholder times the number of directors nominated for election. The stockholder may cast all of such votes for one director or among the directors in any proportion.
 
There is no equivalent provision in respect of companies incorporated in Singapore.

Anti-Takeover Measures

Under the Delaware General Corporation Law, the certificate of incorporation of a corporation may give the board the right to issue new classes of preferred stock with voting, conversion, dividend distribution, and other rights to be determined by the board at the time of issuance, which could prevent a takeover attempt and thereby preclude shareholders from realizing a potential premium over the market value of their shares.

In addition, Delaware law does not prohibit a corporation from adopting a stockholder rights plan, or "poison pill," which could prevent a takeover attempt and also preclude shareholders from realizing a potential premium over the market value of their shares.
 
The constitution of a Singapore public company typically provides that the company may allot and issue new shares of a different class with preferential, deferred, qualified or other special rights as its board of directors may determine with the prior approval of the company's shareholders in a general meeting. Our Constitution provides that, subject to the Singapore Companies Act and our Constitution, no shares may be issued by our directors without the prior approval of our company in a general meeting but subject thereto and to the provisions of our Constitution, our directors may allot and issue shares or grant options over or otherwise dispose of the same to such persons on such terms and conditions and for such consideration (if any) and at such time as our company in a general meeting may approve.

Singapore law does not generally prohibit a corporation from adopting "poison pill" arrangements which could prevent a takeover attempt and also preclude shareholders from realizing a potential premium over the market value of their shares.

However, under the Singapore Code on Take-overs and Mergers, if, in the course of an offer, or even before the date of the announcement of the offer, the board of the offeree company has reason to believe that a bona fide offer is imminent, the board must not, except pursuant to a contract entered into earlier, take any action, without the approval of shareholders at a general meeting, on the affairs of the offeree company that could effectively result in any bona fide offer being frustrated or the shareholders being denied an opportunity to decide on its merits. Such actions include but are not limited to the issue of shares.

 
 
See "Description of Ordinary Shares—Takeovers" in this prospectus for a description of the Singapore Code on Take-overs and Mergers.

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DESCRIPTION OF DEBT SECURITIES

        Flex Ltd. may issue debt securities at any time and from time to time, in one or more series, under an indenture between Flex Ltd. and U.S. Bank National Association, as trustee. Any debt securities that Flex Ltd. may issue may be senior or subordinated debt of Flex Ltd. and may be convertible into and/or exchangeable for ordinary shares or may be non-convertible. We will describe the specific terms of each series of debt securities we offer in a supplement to this prospectus. If any specific terms of the debt securities described in a prospectus supplement differ from any of the terms described in this prospectus, then the terms described in the applicable prospectus supplement will supersede the terms described in this prospectus. The terms of the debt securities will include those set forth in the indenture and the applicable supplemental indenture, if any, and those made a part of the indenture or any applicable supplemental indenture by the Trust Indenture Act of 1939, as amended. You should read the applicable prospectus supplement and the provisions of the indenture and the applicable supplemental indenture, if any, in their entirety before investing in the debt securities.

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PLAN OF DISTRIBUTION

        We and/or the selling securityholders, if applicable, may sell the securities in one or more of the following ways (or in any combination) from time to time:

        The prospectus supplement will state the terms of the offering of the securities, including:

        Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.

        If we and/or the selling securityholders, if applicable, use underwriters in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including:

        Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.

        We and/or the selling securityholders, if applicable, may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions we pay to them. Generally, any agent will be acting on a best-efforts basis for the period of its appointment.

        We and/or the selling securityholders, if applicable, may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and

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delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions we pay for solicitation of these contracts.

        Underwriters and agents may be entitled under agreements entered into with us and/or the selling securityholders, if applicable, to indemnification by us against certain civil liabilities, including liabilities under the Securities Act or to contribution with respect to payments which the underwriters or agents may be required to make. Underwriters and agents may be customers of, engage in transactions with, or perform services for us and its affiliates in the ordinary course of business.

        Each series of securities issued pursuant to this prospectus other than our ordinary shares, which are listed on The Nasdaq Global Select Market, will be a new issue of securities and will have no established trading market. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other than our ordinary shares, may or may not be listed on a national securities exchange.

        In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.


SELLING SECURITYHOLDERS

        Information about selling securityholders, if any, will be set forth in a prospectus supplement, in an amendment to the registration statement of which this prospectus is a part or in filings we make with the SEC under the Exchange Act that are incorporated by reference.


LEGAL MATTERS

        Certain legal matters relating to the issuance and sale of the securities with respect to Singapore law will be passed upon for us by Allen & Gledhill LLP. Certain legal matters relating to the issuance and sale of the securities with respect to U.S. law will be passed upon for us by Curtis, Mallet-Prevost, Colt & Mosle LLP, New York, New York. Certain legal matters with respect to the validity of the securities offered pursuant to this prospectus and any prospectus supplement will be passed upon for any underwriters or agents by counsel named in the applicable prospectus supplement.


EXPERTS

        The consolidated financial statements as of March 31, 2017 and 2016, and for each of the three years in the period ended March 31, 2017, incorporated in this prospectus by reference from the Company's Annual Report on Form 10-K for the year ended March 31, 2017, and the effectiveness of the Company's internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated by reference herein. Such consolidated financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.

28

Table of Contents

        With respect to the unaudited interim financial information for the periods ended June 30, 2017 and July 1, 2016, September 29, 2017 and September 30, 2016 and December 31, 2017 and December 31, 2016, which is incorporated herein by reference, Deloitte & Touche LLP, an independent registered public accounting firm, have applied limited procedures in accordance with the standards of the Public Company Accounting Oversight Board (United States) for a review of such information. However, as stated in their reports included in the Company's Quarterly Report on Form 10-Q for the quarterly periods ended June 30, 2017, September 29, 2017 and December 31, 2017 and incorporated by reference herein, they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their reports on such information should be restricted in light of the limited nature of the review procedures applied. Deloitte & Touche LLP are not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their reports on the unaudited interim financial information because those reports are not "reports" or a "part" of the registration statement prepared or certified by an accountant within the meaning of Sections 7 and 11 of the Securities Act.

29

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LOGO

Table of Contents


PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 14.    Other Expenses of Issuance and Distribution.

        The following table sets forth the fees and expenses to be borne by the registrant in connection with the offerings described in this registration statement.

Registration fee

  $            *  

Transfer agent and trustee fees and expenses

  $            **

Printing

  $            **

Accounting fees and expenses

  $            **

Legal fees and expenses

  $            **

Rating agency fees

  $            **

Miscellaneous

  $            **
​ ​ ​

Total

  $            **
​ ​ ​
​ ​ ​
​ ​ ​
*
Omitted because the registration fee is being deferred pursuant to Rule 456(b) under the Securities Act of 1933, as amended.
**
Not presently known.

Item 15.    Indemnification of Directors and Officers.

        Article 152 of the registrant's Constitution provides that, subject to the provisions of and so far as may be permitted by the Singapore Companies Act, Chapter 50 (the "Singapore Companies Act") and every other Act for the time being in force concerning companies and affecting the registrant, every director, auditor, secretary or other officer of the registrant shall be entitled to be indemnified by the registrant against all costs, charges, losses, expenses and liabilities incurred or to be incurred by him or her in the execution and discharge of his or her duties (including, without limitation, where he or she serves at the request of the registrant as a director, officer, employee or agent of another corporation, partnership, joint venture or other enterprise) or in relation thereto.

        In addition, article 152 of the registrant's Constitution provides that no director, secretary or other officer of the registrant 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 or on behalf of the registrant or for the insufficiency or deficiency of any security in or 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 left or for any other loss, damage or misfortune which happens in the execution of the duties of his or her office or in relation thereto, unless the same happens through his or her own negligence, willful default, breach of duty or breach of trust.

        Section 172 of the Singapore Companies Act prohibits a company from indemnifying its officers against any liability attaching to them in connection with any negligence, default, breach of duty or breach of trust in relation to the company (the "Liability"). However, a company is not prohibited from (a) purchasing and maintaining for any such officer, insurance against any such Liability, or

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(b) indemnifying such officer against any liability incurred by him or her to a person other than the company (such as third party liability), except when the indemnity is against:

    •
    any liability of the officer to pay: (i) a fine in criminal proceedings; or (ii) a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (howsoever arising); or

    •
    any liability incurred by the officer: (i) in defending criminal proceedings in which he or she is convicted; (ii) in defending civil proceedings brought by the company or related company in which judgment is given against him or her; or (iii) in connection with an application for relief under sections 76A(13) or 391 of the Singapore Companies Act in which the court refuses to grant him or her relief.

        The registrant's directors and officers are covered by indemnification agreements with the registrant and a wholly-owned subsidiary of the registrant. These indemnification agreements provide the registrant's officers and directors with indemnification to the maximum extent permitted by applicable law. The registrant has also obtained a directors' and officers' liability insurance policy that will insure directors and officers against the cost of defense, settlement or payment of a judgment under certain circumstances which are permitted under the Singapore Companies Act.

        The foregoing summaries are necessarily subject to the complete text of the Constitution of the registrant, the Singapore Companies Act and the indemnification agreements referred to above, and are qualified in their entirety by reference thereto.

Item 16.    Exhibits.

 
   
  Incorporated by Reference    
 
Exhibit
No. 		  Exhibit   Form   File No.   Filing
Date 		  Exhibit
No. 		  Filed
Herewith 		 
  1.01   Form of Underwriting Agreement*                                

 
3.01
 
Constitution of Flex Ltd.
 
 
10-Q
 
 
000-23354
 
 
10/31/2016
 
 
3.01
 
 
 
 

 
4.01
 
Form of Indenture
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 

 
4.02
 
Form of Debt Securities*
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
5.01
 
Opinion of Allen & Gledhill LLP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 

 
5.02
 
Opinion of Curtis, Mallet-Prevost, Colt & Mosle LLP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 

 
12.01
 
Statement Regarding Computation of Ratio of Earnings to Fixed Charges
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 

 
15.01
 
Letter in Lieu of Consent of Deloitte & Touche LLP
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 

 
23.01
 
Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 

 
23.02
 
Consent of Allen & Gledhill LLP (included in Exhibit 5.01)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 

 
23.03
 
Consent of Curtis, Mallet-Prevost, Colt & Mosle LLP (included in Exhibit 5.02)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 

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  Incorporated by Reference    
 
Exhibit
No. 		  Exhibit   Form   File No.   Filing
Date 		  Exhibit
No. 		  Filed
Herewith 		 
  24.01   Power of Attorney (included on the signature page to this Registration Statement on Form S-3)                             X  

 
25.01
 
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture
 
 
 
 
 
 
 
 
 
 
 
 
 
 
X
 
*
To be filed by a post-effective amendment to this registration statement or as an exhibit to a document incorporated by reference herein.

Item 17.    Undertakings.

        (a)   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 of 1933;

               (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 Securities and Exchange 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 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 (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

            (2)   That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, 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.

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            (4)   That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

              (A)  Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

              (B)  Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

            (5)   That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

                (i)  Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

               (ii)  Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

              (iii)  The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

              (iv)  Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

        (b)   The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.

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        (c)   Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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, 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 Act and will be governed by the final adjudication of such issue.

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EXHIBIT INDEX

 
   
  Incorporated by Reference    
Exhibit
No. 		  Exhibit   Form   File No.   Filing
Date 		  Exhibit
No. 		  Filed
Herewith
  1.01   Form of Underwriting Agreement*                    

 
3.01
 
Constitution of Flex Ltd.
 
10-Q
 
000-23354
 
10/31/2016
 
3.01
 
 

 
4.01
 
Form of Indenture
 
 
 
 
 
 
 
 
 
X

 
4.02
 
Form of Debt Securities*
 
 
 
 
 
 
 
 
 
 

 
5.01
 
Opinion of Allen & Gledhill LLP
 
 
 
 
 
 
 
 
 
X

 
5.02
 
Opinion of Curtis, Mallet-Prevost, Colt & Mosle LLP
 
 
 
 
 
 
 
 
 
X

 
12.01
 
Statement Regarding Computation of Ratio of Earnings to Fixed Charges
 
 
 
 
 
 
 
 
 
X

 
15.01
 
Letter in Lieu of Consent of Deloitte & Touche LLP
 
 
 
 
 
 
 
 
 
X

 
23.01
 
Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm
 
 
 
 
 
 
 
 
 
X

 
23.02
 
Consent of Allen & Gledhill LLP (included in Exhibit 5.01)
 
 
 
 
 
 
 
 
 
X

 
23.03
 
Consent of Curtis, Mallet-Prevost, Colt & Mosle LLP (included in Exhibit 5.02)
 
 
 
 
 
 
 
 
 
X

 
24.01
 
Power of Attorney (included on the signature page to this Registration Statement on Form S-3)
 
 
 
 
 
 
 
 
 
X

 
25.01
 
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture
 
 
 
 
 
 
 
 
 
X
*
To be filed by a post-effective amendment to this registration statement or as an exhibit to a document incorporated by reference herein.

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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-3 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 January 29, 2018.

    FLEX LTD.

 
 
By:
 
/s/ MICHAEL M. MCNAMARA
        Name:   Michael M. McNamara
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints, jointly and severally, Michael M. McNamara and Christopher Collier, and each of them acting individually, as his or her true and lawful attorney-in-fact and agent, each with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments or any abbreviated or subsequent registration statement and any amendments thereto filed pursuant to Rule 462(b) and any supplement to any prospectus included in this Registration Statement or any such amendment or any abbreviated or subsequent registration statement filed pursuant to Rule 462(b)), and to file the same, with all 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 any substitute, may do or cause to be done by virtue hereof. This Power of Attorney may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts shall together constitute one and the same instrument.

        Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 
 
 
 
 
/s/ MICHAEL M. MCNAMARA
Michael M. McNamara 		  Chief Executive Officer (Principal Executive Officer) and Director and Authorized U.S. Representative   January 29, 2018

/s/ CHRISTOPHER COLLIER
Christopher Collier
 
Chief Financial Officer (Principal Financial Officer)
 
January 29, 2018

/s/ DAVID BENNETT
David Bennett
 
Senior Vice President and Chief Accounting Officer (Principal Accounting Officer)
 
January 29, 2018

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Signature
 
Title
 
Date

 
 
 
 
 
/s/ MICHAEL D. CAPELLAS
Michael D. Capellas 		  Chairman of the Board   January 29, 2018

/s/ JENNIFER LI
Jennifer Li
 
Director
 
January 29, 2018

/s/ MARC A. ONETTO
Marc A. Onetto
 
Director
 
January 29, 2018

/s/ DANIEL H. SCHULMAN
Daniel H. Schulman
 
Director
 
January 29, 2018

/s/ WILLY C. SHIH, PH.D.
Willy C. Shih, Ph.D.
 
Director
 
January 29, 2018

/s/ LAY KOON TAN
Lay Koon Tan
 
Director
 
January 29, 2018

/s/ WILLIAM D. WATKINS
William D. Watkins
 
Director
 
January 29, 2018

/s/ LAWRENCE A. ZIMMERMAN
Lawrence A. Zimmerman
 
Director
 
January 29, 2018

II-8



Exhibit 4.01

 

 

FLEX LTD.,

 

as Issuer

 

and

 

U.S. BANK NATIONAL ASSOCIATION,

 

as Trustee

 

 

Indenture

 

Dated as of [             ]

 

 

 


 

TABLE OF CONTENTS

 

 

 

PAGE

 

 

 

ARTICLE 1 Definitions and other Provisions of General Application

1

 

 

 

Section 1.01.

Definitions

1

 

 

 

Section 1.02.

Compliance Certificates and Opinions

7

 

 

 

Section 1.03.

Form of Documents Delivered to Trustee

8

 

 

 

Section 1.04.

Acts of Holders; Record Dates

8

 

 

 

Section 1.05.

Notices, Etc., to Trustee and Company

9

 

 

 

Section 1.06.

Notice to Holders; Waiver

10

 

 

 

Section 1.07.

Trust Indenture Act

11

 

 

 

Section 1.08.

Effect of Headings and Table of Contents

11

 

 

 

Section 1.09.

Successors and Assigns

11

 

 

 

Section 1.10.

Severability Clause

11

 

 

 

Section 1.11.

Benefits of Indenture

11

 

 

 

Section 1.12.

Governing Law; Submission to Jurisdiction

11

 

 

 

Section 1.13.

Waiver of Right to Trial by Jury

12

 

 

 

Section 1.14.

No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders

12

 

 

 

Section 1.15.

Counterparts

12

 

 

 

Section 1.16.

Payment Date Other Than a Business Day

12

 

 

 

Section 1.17.

Bermuda Branch; Full Recourse Obligations

12

 

 

 

Section 1.18.

Force Majeure

13

 

 

 

Section 1.19.

USA PATRIOT Act

13

 

 

 

ARTICLE 2 The Securities

13

 

 

 

Section 2.01.

Forms Generally

13

 

 

 

Section 2.02.

[Intentionally Omitted]

14

 

 

 

Section 2.03.

Amount Unlimited; Issuable in Series

14

 

 

 

Section 2.04.

Authentication and Delivery of Securities

17

 

 

 

Section 2.05.

Execution of Securities

18

 

 

 

Section 2.06.

Certificate of Authentication

18

 

i


 

Section 2.07.

Denomination and Date of Securities; Payments of Interest

18

 

 

 

Section 2.08.

Registration, Transfer and Exchange

19

 

 

 

Section 2.09.

Mutilated, Defaced, Destroyed, Lost and Stolen Securities

21

 

 

 

Section 2.10.

Cancellation of Securities; Destruction Thereof

22

 

 

 

Section 2.11.

Temporary Securities

22

 

 

 

Section 2.12.

Authenticating Agent

23

 

 

 

Section 2.13.

Global Securities

23

 

 

 

Section 2.14.

CUSIP or ISIN Numbers

26

 

 

 

Section 2.15.

Euroclear and Clearstream Procedures Applicable

26

 

 

 

ARTICLE 3 Covenants

26

 

 

 

Section 3.01.

Payments of Principal and Interest

26

 

 

 

Section 3.02.

Maintenance of Office or Agency

27

 

 

 

Section 3.03.

Paying Agents

27

 

 

 

Section 3.04.

Statement by Officers as to Default

28

 

 

 

Section 3.05.

Existence

29

 

 

 

Section 3.06.

Reports and Delivery of Certain Information

29

 

 

 

ARTICLE 4 Consolidation, Merger, or Sale of Assets

29

 

 

 

Section 4.01.

Consolidation, Merger or Sale of Assets by the Company

29

 

 

 

Section 4.02.

Restrictions upon Reincorporating, Merging or Consolidating into a Subject Country

30

 

 

 

ARTICLE 5 Redemption of Securities and Sinking Fund Provisions

32

 

 

 

Section 5.01.

Applicability of Article

32

 

 

 

Section 5.02.

Notice of Redemption; Partial Redemption

32

 

 

 

Section 5.03.

Payment of Securities Called for Redemption

33

 

 

 

Section 5.04.

Exclusion of Certain Securities from Eligibility for Selection for Redemption

34

 

 

 

ARTICLE 6 Defaults And Remedies

34

 

 

 

Section 6.01.

Events of Default

34

 

 

 

Section 6.02.

Acceleration of Maturity; Rescission and Annulment

35

 

ii


 

Section 6.03.

Collection Suit by Trustee; Trustee May File Proofs of Claim

36

 

 

 

Section 6.04.

Priority

37

 

 

 

Section 6.05.

Limitation on Suits

37

 

 

 

Section 6.06.

Unconditional Right of Holders to Receive Payment

38

 

 

 

Section 6.07.

Restoration of Rights and Remedies

38

 

 

 

Section 6.08.

Rights and Remedies Cumulative

39

 

 

 

Section 6.09.

Delay or Omission Not Waiver

39

 

 

 

Section 6.10.

Control by Holders

39

 

 

 

Section 6.11.

Waiver of Past Defaults

39

 

 

 

Section 6.12.

Undertaking for Costs

40

 

 

 

Section 6.13.

Other Remedies

40

 

 

 

Section 6.14.

Waiver of Stay or Extension Laws

40

 

 

 

ARTICLE 7 Trustee

41

 

 

 

Section 7.01.

General

41

 

 

 

Section 7.02.

Certain Rights of Trustee

41

 

 

 

Section 7.03.

Individual Rights of Trustee

43

 

 

 

Section 7.04.

Trustee’s Disclaimer

43

 

 

 

Section 7.05.

Notice of Default

43

 

 

 

Section 7.06.

Reports by Trustee to Holders

44

 

 

 

Section 7.07.

Compensation and Indemnity

44

 

 

 

Section 7.08.

Replacement of Trustee

45

 

 

 

Section 7.09.

Successor Trustee by Merger

46

 

 

 

Section 7.10.

Eligibility

46

 

 

 

Section 7.11.

Money Held in Trust

46

 

 

 

ARTICLE 8 Defeasance and Discharge

47

 

 

 

Section 8.01.

Discharge of Company’s Obligations

47

 

 

 

Section 8.02.

Legal Defeasance

48

 

 

 

Section 8.03.

Covenant Defeasance

49

 

 

 

Section 8.04.

Application of Trust Money

50

 

 

 

Section 8.05.

Repayment of Moneys Held by Paying Agent

50

 

iii


 

Section 8.06.

Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years

50

 

 

 

Section 8.07.

Reinstatement

50

 

 

 

ARTICLE 9 Amendments

51

 

 

 

Section 9.01.

Supplemental Indentures Without Consent of Holders

51

 

 

 

Section 9.02.

Supplemental Indentures with Consent of Holders

52

 

 

 

Section 9.03.

Execution of Supplemental Indentures

54

 

 

 

Section 9.04.

Effect of Supplemental Indentures

54

 

 

 

Section 9.05.

Conformity with Trust Indenture Act

54

 

 

 

Section 9.06.

Payments for Consents

54

 

 

 

Section 9.07.

Reference in Securities to Supplemental Indentures

55

 

iv


 

INDENTURE, dated as of [         ], between Flex Ltd., a Singapore registered public company limited by shares and having company registration no. 199002645H, acting (subject to Section 1.17 hereof) through its Bermuda branch, as Issuer (as more fully set forth in Section 1.01, the “ Company ”), having a principal place of business from which it conducts operations in accordance with its permit located at 16 Par-la-Ville Road, Hamilton HM08 Bermuda, and U.S. Bank National Association, a national banking association duly organized under the laws of the United States of America, as Trustee (the “ Trustee ”).

 

RECITALS OF THE COMPANY

 

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and delivery of the Indenture to provide for the issuance of unsecured debt securities in one or more series (the “ Securities ”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof;

 

WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done; and

 

WHEREAS, the Indenture is subject to, and will be governed by, the provisions of the Trust Indenture Act of 1939, as amended (the “ Trust Indenture Act ”) that are required to be a part of and govern indentures qualified under the Trust Indenture Act.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchases of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Securities, as follows:

 

ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 1.01.                          Definitions .   For all purposes of this Indenture, except as otherwise expressly provided herein or in any indenture supplemental hereto or unless the context otherwise requires:

 

(i)              the terms defined in this Article 1 have the meanings assigned to them in this Article and include the plural as well as the singular;

 


 

(ii)           all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; and

 

(iii)        the words “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

“ Act ,” when used with respect to any Holder, has the meaning specified in Section 1.04.

 

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

“ Agent Members ” means members of, or participants in, the Depositary, Euroclear or Clearstream.

 

“ Authenticating Agent ” means an authenticating agent with respect to any of the series of Securities appointed with respect to all or any series of the Securities by the Trustee pursuant to Section 2.12.

 

“ Board of Directors ” means the board of directors or comparable governing body of the Company, or any committee thereof duly authorized to act on its behalf.

 

“ Business Day ” means any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in The City of New York or in a place of payment.

 

“ Clearstream ” means Clearstream Banking, société anonyme, Luxembourg (formerly Cedel Bank, société anonyme), and any successor thereto.

 

“ Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

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“ Company ” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

“ Company Order ” means a written request or order signed in the name of the Company by any of its Chairman of the Board, its Chief Executive Officer, its President, any Vice President, its Chief Financial Officer, its Treasurer, its Controller, an Assistant Treasurer, its Secretary, an Assistant Secretary or any other officer or authorized representative or signatory of the Company designated from time to time by its Board of Directors, and delivered to the Trustee.

 

“ Corporate Trust Office ” means the office of the Trustee at which the Indenture is principally administered, which at the date of the Indenture is located at 633 West Fifth Street, Los Angeles, CA 90071, Attn: P. Oswald (Flex Ltd. Base Indenture).

 

“ corporation ” means a corporation, association, company, joint-stock company,  business trust or other business entity.

 

“ Default ” means any event that is or with the passage of time or the giving of notice or both would become an Event of Default.

 

“ Depositary ” means The Depository Trust Company until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean such successor Depositary; provided that, for the avoidance of doubt, the Company may appoint different Depositaries under this Indenture with respect to separate series of Securities issued hereunder.

 

“ Euroclear ” means the Euroclear Clearance System and any successor thereto.

 

“ Event of Default ” has the meaning specified in Section 6.01.

 

“ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, from time to time and the rules and regulations of the Commission promulgated thereunder.

 

“ Global Security ” means a Security in global form registered in the Securities Register in the name of a Depositary or a nominee thereof.

 

“ Governmental Obligations ” means notes which are (i) direct obligations of the United States of America (“ U.S. ”) where the payment or payments thereunder are supported by the full faith and credit of the U.S. or (ii)

 

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obligations of a person controlled or supervised by and acting as an agency or instrumentality of the U.S. where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the U.S., and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such government obligation or a specific payment of interest on or principal of or other amount with respect to any such government obligation held by such custodian for the account of the holder of a depository receipt; provided , that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the government obligation or the specific payment of interest on or principal of or other amount with respect to the government obligation evidenced by such depository receipt.

 

“ Holder ” means a Person in whose name a Security is registered in the Securities Register.

 

“ Indenture ” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture with respect to one or more series of Securities, respectively.  The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 2.01.

 

“ Interest Payment Date ”, when used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security or in an Officer’s Certificate or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect to Securities of that series is due and payable.

 

“ Notice of Default ” has the meaning specified in Section 6.01.

 

“ Officer’s Certificate ” means a certificate signed on behalf of the Company by any of its Chairman of the Board, its Chief Executive Officer, its President, any Vice President, its Chief Financial Officer, its Treasurer, its Controller, an Assistant Treasurer, its Secretary, an Assistant Secretary or any other officer or authorized representative or signatory of the Company designated from time to time by its Board of Directors.

 

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“ Opinion of Counsel ” means a written opinion of counsel, who may be external or in-house counsel for the Company, and who shall be reasonably acceptable to the Trustee.

 

“ Original Issue Discount Security ” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.

 

“ Outstanding ” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(i)                                      Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)                                   Securities, or portions thereof, for whose payment, repurchase price upon any required repurchase or redemption money or Governmental Obligations in the necessary amount has been theretofore deposited with the Trustee or any paying agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own paying agent) for the Holders of such Securities; provided , that if such Securities (or portions thereof) are to be redeemed or repurchased at the option of Holders prior to the maturity thereof, notice of such redemption or required repurchase shall have been given to the Holders as provided herein or in any indenture supplemental hereto; and

 

(iii)                                Securities that have been paid or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture;

 

provided, however , that, in determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01 and (ii) Securities which are owned by the Company or any other obligor on the Securities with respect to which such determination is being made or by any Affiliate of the Company shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any request, demand, authorization, direction, notice, consent or

 

5

 

waiver, only Securities which a Responsible Officer of the Trustee actually knows are so owned, or has received written notice from the Company that such Securities are so owned, shall be so disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding if the Company or such Affiliate delivers an Officer’s Certificate to the Trustee certifying as to the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities.

 

“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“ principal ” whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any”.

 

“ record date ” has the meaning specified in Section 2.07.

 

“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the Corporate Trust Office of the Trustee who has direct responsibility for the administration of this Indenture, and shall also mean any other officer of the Trustee to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject matter.

 

“ Security ” or “ Securities ” has the meaning specified in the first paragraph of the Recitals of the Company in this Indenture or, as the case may be, Securities that have been authenticated and delivered under this Indenture.

 

“ Securities Act ” means the U.S. Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.

 

“ Securities Register ” has the meaning specified in Section 2.08.

 

“ Securities Registrar ” means a Person engaged to maintain the Securities Register.

 

“ Subject Country ” has the meaning specified in Section 4.02.

 

“ Subject Transaction ” has the meaning specified in Section 4.02.

 

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“ Successor Entity ” has the meaning specified in Section 4.02.

 

“ Trust Indenture Act ” has the meaning specified in the recitals to this Indenture.

 

“ Trustee ” means the Person named as the “ Trustee ” in the first paragraph of this instrument and any successor Trustee pursuant to the applicable provisions of this Indenture, and thereafter “ Trustee ” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “ Trustee ” as used with respect to the Securities of any series will mean the Trustee with respect to Securities of that series.

 

“ Vice President ” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

 

Section 1.02.                          Compliance Certificates and Opinions .   Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act.  Each such certificate or opinion shall be given in the form of an Officer’s Certificate, if to be given by an officer or authorized representative or signatory of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of this Indenture and the Trust Indenture Act and any other requirement set forth in this Indenture.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

(a)                                  a statement that each person signing the certificate or opinion has read the covenant or condition and the related definitions;

 

(b)                                  a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(c)                                   a statement that, in the opinion of each such person, such individual has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(d)                                  a statement as to whether, in the opinion of each such person, such condition or covenant has been complied with.

 

7


 

Section 1.03.                          Form of Documents Delivered to Trustee .   In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an officer or authorized representative or signatory of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel.  Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers, or other authorized representative or representatives or signatory or signatories, of the Company or certificates of public officials.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 1.04.                          Acts of Holders; Record Dates . (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of a specified percentage in principal amount of any or all series of Outstanding Securities may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by the Holders of such specified percentage in person or by agent duly appointed in writing and delivered to the Trustee, and such action shall become effective pursuant to the provisions of the Indenture.  The Trustee may make reasonable rules for action by or at a meeting of Holders, which will be binding on all the Holders. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as an “ Act ” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.

 

(b)                                  The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof.  Where such execution is by a signor acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or

 

8


 

her authority.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee reasonably deems sufficient.

 

(c)                                   The Company may, but is not obligated to, fix a record date (which need not be within the time limits otherwise prescribed by Trust Indenture Act Section 316(c)) for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders. If a record date is fixed, those Persons that were Holders at such record date and only those Persons will be entitled to act, or to revoke any previous act, whether or not those Persons continue to be Holders after the record date.

 

(d)                                  The ownership of Securities shall be proved by the Securities Register.

 

(e)                                   Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security of a series shall bind every future Holder of the same Security and the Holder of every such Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

Section 1.05.                          Notices, Etc., to Trustee and Company .   (a) Any notice or communication to the Company will be deemed given if in writing (i) when delivered in person or (ii) five days after mailing when mailed by first class mail, or (iii) when sent by facsimile transmission, with transmission confirmed.  Any notice to the Trustee will be effective only upon receipt by a Responsible Officer.  In each case the notice or communication should be addressed as follows :

 

if to the Company :

 

Flex Ltd.

6201 America Center Drive

San Jose, CA 95002

United States of America

Attention: General Counsel

Facsimile: (408) 935-8147

 

if to the Trustee :

 

U.S. Bank National Association

Corporate Trust Services

633 West Fifth Street, 24 th  Floor

 

9


 

Los Angeles, CA 90071

Attention: P. Oswald (Flex Ltd. Base Indenture)

Facsimile: (213) 615-6197

 

The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications .

 

Section 1.06.                          Notice to Holders; Waiver .   Except as otherwise expressly provided with respect to published notices, any notice or communication to a Holder will be deemed given when mailed to the Holder at its address as it appears on the Securities Register by first class mail or, as to any Global Security registered in the name of the Depositary or its nominee, by electronic means in accordance with the Depositary’s operational procedures.  Copies of any notice or communication to a Holder, if given by the Company, will be provided to the Trustee by mail or e-mail (PDF) or facsimile transmission at the same time.  Defect in mailing a notice or communication to any particular Holder will not affect its sufficiency with respect to other Holders.  Where the Indenture provides for notice, the notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and the waiver will be the equivalent of the notice.  Waivers of notice by Holders must be filed with the Trustee, but such filing is not a condition precedent to the validity of any action taken in reliance upon such waivers.

 

In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

The Trustee may accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods from an authorized representative of the party providing such instructions or directions. If the party elects to give the Trustee e-mail (PDF) or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

10


 

Section 1.07.                          Trust Indenture Act .   The Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act.   If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required hereunder to be a part of and govern this Indenture with respect to one or more series of Securities, the latter provision shall control.  If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded with respect to a series of Securities, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

Section 1.08.                          Effect of Headings and Table of Contents .   The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof, and all Article and Section references are to Articles and Sections, respectively, of this Indenture unless otherwise expressly stated.

 

Section 1.09.                          Successors and Assigns .  All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.  All agreements of the Trustee in the Indenture will bind its successors.

 

Section 1.10.                          Severability Clause .   In case any provision in this Indenture or in the Securities of any series shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Indenture and such Securities shall not in any way be affected or impaired thereby.

 

Section 1.11.                          Benefits of Indenture .   Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their respective successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 1.12.                          Governing Law; Submission to Jurisdiction .  The Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.  To the fullest extent permitted by applicable law, the Company hereby irrevocably submits to the jurisdiction of any Federal or State court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Securities and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Company irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any suit, action or proceeding brought in such a court has been brought in an inconvenient forum. The Company agrees that final judgment in any such suit, action or proceeding brought in such a court may be

 

11


 

enforced in the courts of any jurisdiction to which the Company is subject by a suit upon such judgment, provided , that service of process is effected upon the Company in the manner specified in an indenture supplemental hereto or as otherwise permitted by law. To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture, to the extent permitted by law.

 

Section 1.13.                          Waiver of Right to Trial by Jury .  EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

Section 1.14.                          No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders .  No director, officer, employee, incorporator, member or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations.  Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities.

 

Section 1.15.                          Counterparts .  This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.  The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 

Section 1.16.                          Payment Date Other Than a Business Day .  If any payment with respect to a payment of any principal of, premium, if any, or interest on any Security (including any payment to be made on any date fixed for redemption or purchase of any Security) is due on a day which is not a Business Day, then the payment need not be made on such date, but may be made on the next Business Day with the same force and effect as if made on such date, and no interest will accrue for the intervening period.

 

Section 1.17.                          Bermuda Branch; Full Recourse Obligations . Notwithstanding anything to the contrary contained herein, all payments for the account of the Company with respect to the Securities shall be made to or

 

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incurred by the Company at its Bermuda branch with a principal place of business from which it conducts operations in accordance with its permit located at 16 Par-la-Ville Road, Hamilton, HM08 Bermuda and all payments of principal and interest with respect to the Securities by, and other obligations of, the Company will be incurred by the Company through its Bermuda branch; provided, that, notwithstanding the foregoing, the Company acknowledges and agrees that its obligations hereunder and under the Securities are full recourse to Flex Ltd., a company incorporated in Singapore, and are in no manner limited to any extent to any branch thereof and shall in no manner impair the Trustee’s or any Holder’s ability to enforce or collect any obligation from the Company .

 

Section 1.18.                          Force Majeure .  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

Section 1.19.                          USA PATRIOT Act .  The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

 

ARTICLE 2
THE SECURITIES

 

Section 2.01.                          Forms Generally .  The Securities of each series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially in such form (not inconsistent with this Indenture) as shall be established and set forth in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legends, notations or endorsements as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officer, representative or signatory

 

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executing such Securities, as evidenced by such officer’s, representative’s or signatory’s execution of the Securities.

 

The definitive Securities shall be printed, lithographed, typewritten or otherwise reproduced, all as determined by the officer, authorized representative or signatory executing such Securities, as evidenced by the execution of such Securities by such the officer, authorized representative or signatory.

 

Section 2.02.                          [Intentionally Omitted] .

 

Section 2.03.                          Amount Unlimited; Issuable in Series .  Subject to compliance with this Section 2.03, the aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series.  There shall be established in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series:

 

(a)                                  the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities) and ranking (including the terms of any subordination provisions) of the series;

 

(b)                                  any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, Section 2.09, Section 2.11 or Section 5.03);

 

(c)                                   the date or dates on which the principal of the Securities of the series is payable;

 

(d)                                  the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate shall be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable on such Interest Payment Dates;

 

(e)                                   the right, if any, to extend the interest payment periods and the duration of such extension;

 

(f)                                    the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.02);

 

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(g)                                   the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;

 

(h)                                  the obligation, if any, of the Company to redeem, purchase or repay Securities of the series at the option of a Holder thereof pursuant to any sinking fund or otherwise and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;

 

(i)                                      if other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities of the series shall be issuable;

 

(j)                                     the percentage of the principal amount at which the Securities will be issued, and, if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02;

 

(k)                                  whether the Securities are issuable under Rule 144A, Regulation S or any other exemption under the Securities Act and, in such case, any provisions unique to such form of issuance including any transfer restrictions or exchange and registration rights;

 

(l)                                      whether the Securities are issuable as one or more Global Securities and, in such case, the identity of the Depositary for such series;

 

(m)                              any deletion from, modification of or addition to the Events of Default or covenants provided for with respect to the Securities of such series;

 

(n)                                  any provisions granting special rights to Holders when a specified event occurs;

 

(o)                                  whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by a Person who is not a U.S. Person (within the meaning of Regulation S under the Securities Act) in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem the Securities of the series rather than pay such additional amounts;

 

(p)                                  any special tax implications of the Securities, including provisions for Original Issue Discount Securities;

 

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(q)                                  any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of such series;

 

(r)                                     any guarantor or co-issuer of the Securities of such series;

 

(s)                                    any special interest premium or other premium;

 

(t)                                     whether the Securities are convertible or exchangeable into, cash, ordinary shares or other equity securities or other assets or property of the Company or a combination thereof and the terms and conditions upon which such conversion or exchange shall be effected;

 

(u)                                  the currency in which payments shall be made, if other than U.S. dollars;

 

(v)                                  any provision of the Securities that would determine payments on the Securities by reference to an index or a formula;

 

(w)                                if the principal amount to be paid at the fixed maturity of such series is not determinable as of one or more dates prior to such fixed maturity, the amount that will be deemed to be the principal amount as of any such date for any such purpose;

 

(x)                                  any additional provisions relating to the defeasance or discharge of the Securities of the series for purposes of Article 8; and

 

(y)                                  any and all other terms of the series (which terms shall not be inconsistent with the provisions of the Indenture) including any terms which may be required by or advisable under U.S. law or regulations or advisable in connection with the marketing of Securities in such series.

 

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be set forth in any indenture supplemental hereto.  The Company may, without notice to or the consent of the Holders, increase the principal amount of the Securities of any series by issuing additional Securities of the same series in the future on the same terms and conditions as the Securities of such series, except for any differences in the issue price and, if applicable, the initial interest accrual date and interest payment date; provided , that if the additional Securities are not fungible with the Securities of such series for U.S. federal income tax purposes, such additional Securities will have one or more separate CUSIP numbers. Whether or not such additional Securities are so fungible, the Securities of any series and any additional Securities of such series the Company may issue in the future will be treated as a single series for all other purposes under this Indenture, including for purposes of determining whether the required percentage of the Holders of record of the

 

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Securities of such series has given approval or consent to an amendment or waiver or joined in directing the Trustee to take certain actions on behalf of all Holders of the Securities of such series.

 

There shall be established in one or more indentures supplemental hereto, prior to the issuance of any additional Securities of any series:

 

(i)                                      the aggregate principal amount of such additional Securities to be authenticated and delivered pursuant to this Indenture;

 

(ii)                                   the issue price, the issue date and the CUSIP numbers, if any, of such additional Securities and, to the extent applicable, the date from which interest shall accrue on, and the initial Interest Payment Date for, such additional Securities; and

 

(iii)                                whether such additional Securities shall be transfer restricted Securities or have any registration or exchange rights.

 

Section 2.04.                          Authentication and Delivery of Securities .  At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order.  The Trustee, in accordance with such Company Order, shall authenticate and deliver such Securities.

 

Prior to the initial issuance of Securities of any series, in authenticating such Securities and accepting the additional responsibilities under the Indenture in relation to such Securities, the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon:

 

(a)                                  any executed supplemental indenture  establishing or setting forth the form and terms of the Securities as required pursuant to Section 2.01 and Section 2.03, respectively, and

 

(b)                                  an Opinion of Counsel, prepared in accordance with Section 1.02, to the effect that

 

(i)                                      the form or forms and terms of such Securities have been established by a supplemental indenture as permitted by Section 2.01 and Section 2.03 in conformity with the provisions of this Indenture; and

 

(ii)                                   such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company entitled to the benefits of this Indenture, and enforceable against the Company in accordance with their

 

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terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws now or hereafter in effect relating to creditors’ rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

 

Section 2.05.                          Execution of Securities .  The Securities shall be signed in the name of the Company by any one of its Chairman of the Board, its Chief Executive Officer, its Chief Financial Officer, its President, its Treasurer, one of its Vice Presidents or any other officer or authorized representative or signatory of the Company designated from time to time by its Board of Directors.   Such signature may be the manual or facsimile signature of the present or any future such officer.  Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.

 

In case any officer or authorized representative or signatory of the Company who shall have signed any of the Securities shall cease to be such officer, representative or signatory before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer, representative or signatory of the Company; and any Security may be signed on behalf of the Company by such person as, at the actual date of the execution of such Security, shall be the proper officer, representative or signatory of the Company, although at the date of the execution and delivery of this Indenture any such person was not such an officer, representative or signatory.

 

Section 2.06.                          Certificate of Authentication .  Only such Securities as shall bear thereon a certificate of authentication, executed by the Trustee by the manual signature of one of its authorized signatories, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.

 

Section 2.07.                          Denomination and Date of Securities; Payments of Interest .  The Securities shall be issuable as registered securities without coupons and in denominations as shall be specified as contemplated by Section 2.03.  In the absence of any such specification with respect to the Securities of any series, the Securities of such series shall be issuable in minimum denominations of $2,000 in principal amount and integral multiples of $1,000 in excess thereof.  The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officer, representative or signatory of the

 

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Company executing the same may determine as evidenced by the execution and authentication thereof.

 

The principal of and the interest on the Securities of any series shall be payable in the coin or currency of the United States of America that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose.

 

Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each case, established as contemplated by Section 2.03.

 

Except as otherwise provided pursuant to Section 2.03, the Person in whose name any Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any Interest Payment Date for such series shall be entitled to receive the interest, if any, payable on such Interest Payment Date notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such Interest Payment Date, except if and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date for such series, in which case such defaulted interest shall be paid to the Persons in whose names Outstanding Securities for such series are registered at the close of business on a subsequent special record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Company to the Holders not less than 15 days preceding such subsequent special record date.  The term “ record date ” as used with respect to any Interest Payment Date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such Interest Payment Date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such Interest Payment Date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day.

 

Section 2.08.                          Registration, Transfer and Exchange .  The Company may appoint one or more Securities Registrars.  The Company initially appoints the Trustee as Securities Registrar.  The Company will keep or cause to be kept at one of the offices or agencies to be maintained for the purpose as provided in Section 3.02 a register (the “ Securities Register ”) in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of, Securities as in this Article provided.  The Securities Register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time.  At all reasonable times the Securities Register shall be open for inspection by the Trustee.

 

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Upon due presentation for registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.02, and upon satisfaction by the transferor and the transferee of the requirements and conditions established in or pursuant to the Indenture,  the Company shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series in authorized denominations for a like aggregate principal amount.

 

Any Security or Securities of any series may be exchanged for a Security or Securities of the same series in other authorized denominations, in an equal aggregate principal amount.  Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Company for the purpose as provided in Section 3.02 and, upon satisfaction by the Holder making the exchange of the requirements and conditions established in or pursuant to the Indenture, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities of the same series which the Holder making the exchange shall be entitled to receive, bearing numbers not contemporaneously Outstanding.

 

All Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing, together with signature guarantees for such Holder or attorney.

 

The Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities.  No service charge shall be made for any such transaction.

 

Neither the Company nor the Trustee shall be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days preceding the selection of Securities of such series to be redeemed or purchased  pursuant to any required offer to purchase the notes, (b) any Securities selected, called or being called for redemption except, in the case of any Security where such Security is to be redeemed in part, the portion thereof not so to be redeemed or (c) if a redemption is to occur after a record date but on or before the corresponding interest payment date, any Securities on or after the record date and before the date of redemption.

 

In addition to the transfer requirements provided in this Section 2.08, any Security or Securities will be subject to such further transfer restrictions as may be contained in an indenture supplemental hereto applicable to such series of Securities.

 

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The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or beneficial owners of interests in any Global Security or definitive Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under the Indenture, as the Securities surrendered upon such transfer or exchange.

 

Section 2.09.                          Mutilated, Defaced, Destroyed, Lost and Stolen Securities .  In case any temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen, the Company in its discretion may execute, and upon the receipt of a Company Order, the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen.  In every case the applicant for a substitute Security shall furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.

 

Upon the issuance of any substitute Security, the Company or the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.  In case any Security, which has matured or is about to mature or has been called for redemption in full or has otherwise become or is about to become due and payable, shall become mutilated or defaced or be destroyed, lost or stolen, the Company may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee and any agent of the Company or the Trustee

 

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evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.

 

Every substitute Security of any series issued pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder.  All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

 

Section 2.10.                          Cancellation of Securities; Destruction Thereof .  The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold.  Any Securities Registrar or paying agent will forward to the Trustee any Securities surrendered to it for transfer, exchange or payment.  The Trustee will cancel all Securities surrendered for transfer, exchange, payment or cancellation and dispose of them in accordance with its normal procedures upon the written instructions of the Company, and will provide confirmation of such cancellation or disposition to the Company upon the Company’s written request.  The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.

 

Section 2.11.                          Temporary Securities .  Pending the preparation of definitive Securities for any series, the Company may execute and the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced).  Temporary Securities of any series shall be issuable as registered Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the officer or authorized signatory executing the temporary Securities, as evidenced by the execution of the temporary Securities.  Temporary Securities may contain such reference to any provisions of the Indenture as may be appropriate.  Every temporary Security shall be executed by the Company and be authenticated by the Trustee upon the

 

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same conditions and in substantially the same manner, and with like effect, as the definitive Securities.  Without unreasonable delay the Company shall cause  definitive Securities of such series to be prepared and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Company for that purpose pursuant to Section 3.02, and the Company will execute and the Trustee will authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series in authorized denominations.  Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under the Indenture as definitive Securities of such series.

 

Section 2.12.                          Authenticating Agent .  So long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint.  Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of the Indenture and shall be valid and binding for all purposes as if authenticated by the Trustee hereunder.  All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series.  Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by Federal or State authorities.  If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.  Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time (and upon written request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company.  Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company.  Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.

 

Section 2.13.                          Global Securities . If the Company shall establish pursuant to Section 2.03 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that

 

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shall (iv) represent, and be issued in a denomination or aggregate denominations equal to the aggregate principal amount of all the Securities to be represented by a Global Security, (v) be registered in the name of the Depositary or its nominee, (vi) be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (vii) bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.13 of the Indenture, this Security may be transferred, in whole but not in part, only to the Depositary, to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”

 

Notwithstanding the provisions of Section 2.08, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.08, only to the Depositary for such series, to another nominee of the Depositary for such series or to a successor Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary.

 

Ownership of beneficial interests in a registered Global Security will be limited to Agent Members that have accounts with the Depositary or Persons that may hold interests through Agent Members.  Upon the issuance of a registered Global Security, the Depositary will credit, on its book-entry registration and transfer system, the Agent Members’ accounts with the respective principal or face amounts of the Securities beneficially owned by the Agent Members.  Any dealers, underwriters, initial purchasers or agents participating in the distribution of the Securities will designate the accounts to be credited.  Ownership of beneficial interests in a registered Global Security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the Depositary, with respect to interests of Agent Members, and on the records of Agent Members, with respect to interests of Persons holding through Agent Members.

 

So long as the Depositary, or its nominee, is the registered owner of a registered Global Security, that Depositary or its nominee, as the case may be, will be considered the sole owner or Holder of the Securities represented by the registered Global Security for all purposes under the Indenture. Except as described in this Section 2.13, owners of beneficial interests in a registered Global Security will not be entitled to have the Securities represented by the registered Global Security registered in their names, will not receive or be entitled to receive physical delivery of the Securities in definitive form and will not be considered the owners or Holders of the Securities under the Indenture.  Accordingly, each Person owning a beneficial interest in a registered Global Security must rely on the procedures of the Depositary for that registered Global Security and, if that Person is not an Agent Member, on the procedures of the Agent Member through which the Person owns its interest, to exercise any rights of a Holder under the Indenture.  Notwithstanding the foregoing, the Depositary or its nominee may

 

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grant proxies and otherwise authorize any Person (including any Agent Member and any Person that holds a beneficial interest in a Global Security through an Agent Member) to take any action which a Holder is entitled to take under the Indenture or the Securities, and nothing herein will impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security.

 

Principal and interest payments on Securities represented by a Global Security registered in the name of the Depositary or its nominee will be made to the Depositary or its nominee, as the case may be, as the registered owner of the registered Global Security.  None of the Company, the Trustee or any other agent of the Company, or any agent of the Trustee will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered Global Security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.

 

If (i) at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or that it is no longer registered or in good standing under the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within  90 days after the Company receives such notice, or (ii) an Event of Default has occurred and is continuing and the Trustee has received a request from the Depositary, this Section 2.13 shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.08, the Trustee will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.  In addition, the Company may, subject to the procedures of the Depositary, at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions of this Section 2.13 shall no longer apply to the Securities of such series.  In such event the Company will execute and subject to Section 2.08, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.  Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security shall be cancelled by the Trustee.  Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.13 shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or

 

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indirect Agent Members or otherwise, shall instruct the Trustee in writing.  The Company and the Trustee shall be entitled to conclusively rely on such instructions from the Depositary and shall incur no liability to any Person for any losses or damages arising as a result of any delay in receiving such instructions.  The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.

 

Section 2.14.      CUSIP or ISIN Numbers . In issuing the Securities, the Company may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a convenience to Holders; provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee of any change in the “CUSIP” or “ISIN” numbers.

 

Section 2.15.      Euroclear and Clearstream Procedures Applicable . The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in any Global Security held by Agent Members through Euroclear and Clearstream.

 

ARTICLE 3
COVENANTS

 

Section 3.01.      Payments of Principal and Interest . (a) The Company covenants and agrees for the benefit of each series of Securities that it will pay or cause to be paid the principal of, and interest on, each of the Securities of such series at the place or places, at the respective times and in the manner provided in such Securities.  The Company agrees to pay interest on overdue principal, and, to the extent lawful, overdue installments of interest at the rate per annum specified in such Securities.  Unless otherwise provided in the Securities of any series, not later than 11:00 A.M. (New York City time) on the due date of any principal of, or interest on, any Securities, the Company will deposit with the paying agent moneys in immediately available funds sufficient to pay such amounts; provided , that if the Company or any Affiliate of the Company is acting as paying agent, it will, on or before each due date, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such amounts until paid to such Holders or otherwise disposed of as provided in this Indenture.  In each case, unless the paying agent is the Trustee, the Company will promptly notify the Trustee of its compliance with this paragraph.

 

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(b)           An installment of principal or interest will be considered paid on the date due if the Trustee (or paying agent, other than the Company or any Affiliate of the Company) holds on that date money designated for and sufficient to pay the installment.  If the Company or any Affiliate of the Company acts as paying agent, an installment of principal or interest will be considered paid on the due date only if paid to the Holders.

 

(c)           Payments in respect of the Securities represented by Global Securities are to be made by wire transfer of immediately available funds to the account specified by the Holder of the Global Securities.  With respect to any definitive Security, the Company will make all payments by wire transfer of immediately available funds to the accounts specified in writing by the Holders thereof or, if no account is specified at least 15 days prior to the applicable date for such payment, by check mailed to such Holder at its address as it appears in the Securities Register.

 

Section 3.02.      Maintenance of Office or Agency .  The Company will maintain in the United States of America, an office or agency where Securities may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of the Securities and the Indenture may be served.  The Company hereby initially designates the Corporate Trust Office of the Trustee as such office of the Company.  The Company will give written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served to the Trustee; provided that the Corporate Trust Office of the Trustee shall not be an office or agency of the Company for the purpose of service of legal process against the Company.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities may be surrendered or presented for any of such purposes and may from time to time rescind such designations.  The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

Section 3.03.      Paying Agents .  Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Company and the Trustee, subject to the provisions of this Section 3.03,

 

(a)           that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the

 

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Securities of such series) in trust for the benefit of the Holders of the Securities of such series or of the Trustee,

 

(b)           that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable,

 

(c)           that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure referred to in Section 3.03(b) above, and

 

(d)           that it will perform all other duties of paying agent as set forth in this Indenture.

 

(e)           Anything in this Section 3.03 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Company or any paying agent hereunder, as required by this Section 3.03, such sums to be held by the Trustee upon the trusts herein contained.

 

Anything in this Section 3.03 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this section is subject to the provisions of Section 8.05 and Section 8.06.

 

Upon any Event of Default under Section 6.01(d) or 6.01(e), the Trustee shall automatically be the paying agent.

 

Section 3.04.      Statement by Officers as to Default .  The Company will  deliver to the Trustee within 120 days after the end of each fiscal year a certificate from the principal executive, financial or accounting officer of the Company stating that the officer has conducted or supervised a review of the activities of the Company and its performance under the Indenture and that, based upon such review, the Company has fulfilled its obligations hereunder or, if there has been a Default or Event of Default, specifying the Default or Event of Default and the action which the Company proposes to take with respect thereto.

 

The Company will deliver to the Trustee, as soon as possible and in any event within five calendar days after the Company becomes aware of the occurrence of a Default or Event of Default, an Officer’s Certificate setting forth the details of the Default or Event of Default, and the action which the Company proposes to take with respect thereto.

 

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Section 3.05.      Existence .  The Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and its material rights, licenses and franchises; provided , that the Company is not required to preserve any such right, license or franchise, if, in the judgment of the Company, the maintenance or preservation thereof is no longer desirable in the conduct of the business of the Company; provided further that this Section does not prohibit any transaction otherwise permitted by Article 4.

 

Section 3.06.      Reports and Delivery of Certain Information .   At any time that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Securities are outstanding, the Company will furnish to the Trustee and make available on its website copies of such annual and quarterly reports and such information, documents and other reports as are required under Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation (and not a foreign private issuer) subject to such provisions, within 15 days after the filing with the Commission of such information, documents and reports under such provisions.  Documents filed with the Commission via the EDGAR system (or any successor thereto) will be deemed to be filed with the Trustee at the time such documents are filed via such system, though the Trustee shall have no duty to monitor whether such filings have been made.  Delivery of these reports and information to the Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).  All obligors on the Securities will comply with Section 314(a) of the Trust Indenture Act.

 

ARTICLE 4
CONSOLIDATION, MERGER, OR SALE OF ASSETS

 

Section 4.01.      Consolidation, Merger or Sale of Assets by the Company .

 

(a)           The Company shall not consolidate, merge, combine or amalgamate with or into (whether or not the Company is the surviving entity), any other Person or convey, transfer or lease its property and assets as an entirety or substantially as an entirety, or permit any other Person to consolidate, merge, combine or amalgamate with or into the Company unless:

 

(i)            the Company is the surviving entity or the Person formed by or surviving any such consolidation, merger, combination or amalgamation (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of either

 

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(A) the United States, any state thereof, the District of Columbia or Singapore or (B) a Subject Country, in which case the Company must have satisfied its obligations as set forth in Section 4.02;

 

(ii)           if the Company is not the surviving entity, such surviving or successor Person will expressly assume, by supplemental indenture, the due and punctual payment of the principal of, any premium and interest on and any additional amounts with respect to all of the Securities, and the performance of the Company’s obligations under the Indenture, including, if any Securities are then secured pursuant to the Indenture, any collateral documents relating thereto, and the Securities issued hereunder;

 

(iii)          immediately after giving effect to such transaction, no Default or Event of Default exists; and

 

(iv)          the Company delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the consolidation, merger or transfer and the supplemental indenture (if any) comply with the Indenture.

 

(b)           Upon the consummation of any transaction effected in accordance with these provisions, if the Company is not the continuing Person, the resulting, surviving or transferee Person will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture and the Securities with the same effect as if such successor Person had been named as the Company in the Indenture.  Upon such substitution, except in the case of a sale, conveyance, transfer or disposition of less than all its assets or a lease of all or less than all its assets, the Company will be released from its obligations under the Indenture and the Securities.

 

Section 4.02.      Restrictions upon Reincorporating, Merging or Consolidating into a Subject Country.

 

(a)           The Company may not consolidate, merge, combine or amalgamate with or into any other person or convey, transfer or lease its property and assets as an entirety or substantially as an entirety to any other person, or permit any other person to consolidate, merge, combine or amalgamate with or into it (a “ Subject Transaction ”) unless it satisfies the conditions set forth below. If the surviving or resulting transferee, lessee or successor Person (the “ Successor Entity ”) in a Subject Transaction is incorporated in any jurisdiction other than the country of Singapore and the United States of America, or any state thereof or the District of Columbia (any such jurisdiction, a “ Subject Country ”), then the Company must satisfy the conditions specified in paragraphs (b), (c) and (d) below as promptly as practicable but no later than 60 days following the date of such Subject Transaction:

 

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(b)           the Company shall have delivered to the Trustee an Opinion of Counsel as to the continued validity, binding effect and enforceability of this Indenture and the Securities and to the further effect that such counsel is not aware of any pending change in, or amendment to, the laws (or any regulations promulgated thereunder) of any Subject Country in which the proposed Successor Entity is incorporated or maintains its principal place of business or principal executive office, or any taxing authority thereof or therein, affecting taxation, or any pending execution of or amendment to, or any pending change in application of or official position regarding, any treaty or treaties affecting taxation to which any such Subject Country is a party, which, in any such case, would permit the Company to redeem the Securities pursuant to any optional redemption upon changes in tax laws provided for under this Indenture or any supplemental indenture, it being understood that such counsel may, in rendering such opinion, rely, to the extent appropriate, on opinions of independent local counsel of recognized standing and the Company may instead deliver two or more opinions of counsel which together cover all of the foregoing matters;

 

(c)           the Company shall have delivered to the Trustee a certificate, signed by two Officers of the Successor Entity, as to the continued validity, binding effect and enforceability of this Indenture and the Securities; and

 

(d)           the Successor Entity shall, promptly but no later than 60 days following the date of such Subject Transaction, consent to the jurisdiction of the Federal or State courts located in the Borough of Manhattan in The City of New York, New York.

 

In the event of any Subject Transaction in which the Successor Entity is organized and existing under the laws of a Subject Country, the Company will indemnify and hold harmless the Trustee and each Holder from and against any and all present and future taxes, levies, imposts, charges and withholdings (including, without limitation, estate, inheritance, capital gains and other similar taxes), and any and all present and future registration, stamp, issue, documentary or other similar taxes, duties, fees or charges, imposed, assessed, levied or collected by or for the account of any jurisdiction or political subdivision or taxing or other governmental agency or authority thereof or therein on or in respect of the Securities, this Indenture or any other agreement relating to calculations to be performed with respect to the Securities or any amount paid or payable under any of the foregoing which, in any such case, would not have been imposed had such Subject Transaction not occurred.

 

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ARTICLE 5
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

 

Section 5.01.      Applicability of Article . The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise contemplated by Section 2.03 for Securities of such series.

 

Section 5.02.      Notice of Redemption; Partial Redemption .

 

(a)           If the Company elects to redeem Securities of any series, it must notify the Trustee of the redemption date and the principal amount of Securities of such series to be redeemed by delivering an Officer’s Certificate at least 40 days before the redemption date, and in no event less than 10 days prior to the sending of the notice of redemption to the Holders of such Securities (unless a shorter period is satisfactory to the Trustee).  If fewer than all of the Securities of the applicable series are being redeemed, (i) in the case of Securities of a series not in the form of Global Securities, the Officer’s Certificate must also specify a record date not less than 15 days after the date the notice of redemption is given to the Trustee, and the Trustee will select the Securities of such series to be redeemed pro rata, by lot or by any other method customarily authorized by the clearing systems (including the Depositary), and will notify the Company promptly of the Securities of such series or portions of the Securities of such series to be called for redemption; provided however , that the principal amount of the Securities of such series so selected by the Trustee for such partial redemption shall not exceed the amount which the Company has chosen to redeem, and (ii) in the case of Securities of a series in the form of Global Securities, the Securities of such series to be redeemed will be selected in accordance with the procedures of the applicable clearing system; provided , that, in each case the Securities of such series will be redeemed in minimum denominations of $2,000 principal amount and higher integral multiples of $1,000.  Notice of redemption must be sent by the Company, or at the Company’s request given at least 5 days before such notice is to be sent (unless a shorter period is satisfactory to the Trustee), by the Trustee in the name and at the expense of the Company, to the Holders whose Securities of such series are to be redeemed at least 30 days but not more than 60 days before the redemption date.

 

(b)           The notice of redemption to the Holders will identify the Securities of the applicable series to be redeemed and will include or state the following:

 

(1)        the redemption date;

 

(2)        the redemption price, including the portion thereof representing any accrued interest;

 

(3)        the place or places where such Securities are to be surrendered for redemption;

 

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(4)        that, if applicable, such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case;

 

(5)        on the redemption date the redemption price will become due and payable on such Securities called for redemption, and interest on such Securities called for redemption will cease to accrue on and after the redemption date (unless the Company shall default in the payment of such Securities at the redemption price, together with interest accrued to said date);

 

(6)        if any Securities are redeemed in part, on and after the redemption date, upon surrender of such Securities, new Securities equal in principal amount to the unredeemed portion will be issued, provided that no new Securities in a principal amount less than the applicable minimum denomination shall be issued;

 

(7)        if any Securities contain a CUSIP or CINS number, no representation is being made as to the correctness of the CUSIP or CINS number either as printed on the Securities or as contained in the notice of redemption and that the Holder should rely only on the other identification numbers printed on the Securities .

 

Not later than 11:00 A.M. (New York City time) on the redemption date specified in the notice of redemption given as provided in this Section, the Company will deposit with the Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.03) an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption.  The Trustee or paying agents will promptly return to the Company any money deposited with the Trustee or paying agents by the Company in excess of the amount necessary to pay the redemption price of and accrued interest on all Securities to be redeemed.

 

Section 5.03.      Payment of Securities Called for Redemption .  If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the

 

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redemption price thereof and unpaid interest to the date fixed for redemption.  On presentation and surrender of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided , that any payment of interest becoming due on or before the date fixed for redemption shall be payable to the Holders of such Securities registered as such at the close of business on the relevant record date.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or yield to maturity (in the case of an Original Issue Discount Security) borne by the Security.

 

Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.

 

Section 5.04.      Exclusion of Certain Securities from Eligibility for Selection for Redemption .  Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officer’s Certificate delivered to the Trustee at least 15 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Company or (b) an entity specifically identified in such written statement directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.

 

ARTICLE 6
DEFAULTS AND REMEDIES

 

Section 6.01.      Events of Default .  “ Event of Default ,” wherever used herein with respect to any series of Securities, occurs if:

 

(a)           the Company defaults in the payment of interest on any of the Securities of such series when the same becomes due and payable, and such default continues for a period of 30 days;

 

(b)           the Company defaults in the payment of the principal of any of the Securities of such series when the same becomes due and payable, at maturity, upon acceleration or redemption, or otherwise;

 

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(c)           the Company defaults in the performance of or breaches any other covenant, warranty or agreement of the Company in this Indenture in respect of the Securities of such series or the applicable series of Securities and the default or breach continues for a period of 90 consecutive days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of all affected series (voting together as a single class) a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “ Notice of Default ” hereunder;

 

(d)           an involuntary case or other proceeding is commenced against the Company with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding remains undismissed and unstayed for a period of 60 days; or an order for relief is entered against the Company under the federal bankruptcy laws as now or hereafter in effect; or

 

(e)           the Company (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or of all or substantially all of the property and assets of the Company or (iii) effects any general assignment for the benefit of creditors.

 

Section 6.02.      Acceleration of Maturity; Rescission and Annulment .   If an Event of Default (other than those specified in 6.01(d) and 6.01(e)) with respect to one or more series of Securities occurs and is continuing, then, and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities of all affected series then Outstanding (voting together as a single class), by notice in writing to the Company (and to the Trustee if the notice is given by the applicable Holders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Outstanding Securities of each such series, together with all accrued and unpaid interest, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.

 

Notwithstanding the foregoing, in the case of an Event of Default specified in Section 6.01(d) or 6.01(e), the entire principal amount of the Outstanding Securities plus accrued and unpaid interest, if any, will ipso facto

 

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become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

After a declaration of acceleration under Section 6.01(a), Section 6.01(b) or Section 6.01(c) or any automatic acceleration under Sections 6.01(d) or 6.01(e), the Holders of a majority in principal amount of the Outstanding Securities of any series (each such series voting as a separate class) may rescind such acceleration with respect to the Securities of such series (x) if all existing Events of Default with respect to the Securities of such series, except for nonpayment of the principal and interest on the Securities of such series that have become due solely as a result of such acceleration, have been cured or waived and (y) if rescission of acceleration would not conflict with any judgment or decree of a court of competent jurisdiction.

 

The Holders of a majority in principal amount of the Outstanding Securities of all affected series (voting together as a single class) may, by written notice to the Company and the Trustee, also waive an existing or past Default or Event of Default, except a default in the payment of principal of or interest on any Outstanding Security, or in respect of a covenant or a provision that cannot be modified or amended without the consent of all affected Holders.

 

For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared or become due and payable pursuant to the provisions hereof, then, from and after such acceleration or declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.

 

Section 6.03.      Collection Suit by Trustee; Trustee May File Proofs of Claim .  If an Event of Default in payment of principal or interest specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust for the whole amount of principal and accrued interest remaining unpaid, together with interest on overdue principal and, to the extent lawful, overdue installments of interest, in each case at the rate specified in the affected Securities, and such further amount as is sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee hereunder.

 

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The Trustee may file proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee hereunder) and the Holders allowed in any judicial proceedings relating to the Company or its creditors or property, and is entitled and empowered to collect, receive and distribute any money, securities or other property payable or deliverable upon conversion or exchange of the Securities or upon any such claims.  Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due the Trustee hereunder.  Nothing in the Indenture will be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 6.04.      Priority .  If the Trustee collects any money or property pursuant to this Article, it shall pay out the money or property in the following order:

 

First:  to the Trustee for all amounts due hereunder;

 

Second:  to Holders for amounts then due and unpaid for principal of and interest on the Securities of the affected series, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities of the affected series for principal and interest; and

 

Third:  to the Company or as a court of competent jurisdiction may direct.

 

The Trustee, upon written notice to the Company, may fix a record date and payment date for any payment to Holders pursuant to this Section.

 

Section 6.05.      Limitation on Suits .  No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

(i)            such Holder has previously given written notice to the Trustee of a continuing Event of Default;

 

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(ii)           the Holders of not less than 25% in aggregate principal amount of the affected Securities then Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

(iii)          such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against any costs, liabilities or expenses to be incurred in compliance with such request;

 

(iv)          the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(v)           no direction, in the opinion of the Trustee, inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the affected Securities then Outstanding;

 

it being understood and intended that no one or more Holders of any Securities of any series shall have any right in any manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of the applicable series.

 

Section 6.06.      Unconditional Right of Holders to Receive Payment .  Notwithstanding any other provision of this Indenture, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on or after the respective due dates expressed or provided for in such Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected adversely without the consent of such Holder.

 

Section 6.07.      Restoration of Rights and Remedies .  If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

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Section 6.08.      Rights and Remedies Cumulative .  Except as otherwise provided in Section 2.09 or Section 6.05 , no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or exercise of any right or remedy hereunder shall not prevent the concurrent assertion or exercise of any other appropriate right or remedy.

 

Section 6.09.      Delay or Omission Not Waiver .  No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

Section 6.10.      Control by Holders .  The Holders of a majority in aggregate principal amount of the Securities of all affected series (voting together as a single class) at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of each such series by the Indenture; provided , however , that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture. The Trustee shall have the right to decline to follow any such direction if the Trustee shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that  the Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.  Prior to acting hereunder, the Trustee shall be entitled to indemnity or security satisfactory to it against loss, liability or expense that may be incurred in connection with such action.

 

Section 6.11.      Waiver of Past Defaults .  Except as otherwise provided in Section 6.01, Section 6.06 and Section 9.02, the Holders of a majority in aggregate principal amount of the Outstanding Securities affected may, by notice to the Trustee and the Company, waive a past or existing Default or Event of Default and its consequences on behalf of the Holders of all Outstanding Securities with respect to such Default or Event of Default.

 

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Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

Section 6.12.      Undertaking for Costs .  In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, in either case in respect of the applicable series of Securities, a court may require any party litigant (other than the Trustee) in such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorney’s fees, against any party litigant (other than the Trustee) in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant; but the provisions of this Section 6.12 shall not apply to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities or to a suit instituted by a Holder to enforce payment of principal of or interest on any Security on the respective due dates expressed or provided for in such Security.

 

Section 6.13.      Other Remedies .  If an Event of Default occurs and is continuing, the Trustee may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment of principal of and interest on the applicable series of Securities or to enforce the performance of any provision of the applicable series of Securities or the Indenture.  The Trustee may maintain a proceeding even if it does not possess any of the applicable Securities or does not produce any of them in the proceeding.

 

Section 6.14.      Waiver of Stay or Extension Laws .  The Company covenants, to the extent that it may lawfully do so, that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of, or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of the Indenture.  The Company hereby expressly waives, to the extent that it may lawfully do so, all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

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ARTICLE 7
TRUSTEE

 

Section 7.01.      General .  The duties and responsibilities of the Trustee are as provided by the Trust Indenture Act and as set forth herein.  Whether or not expressly so provided, every provision of the Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee is subject to this Article.

 

(a)           Except during the continuance of an Event of Default, the Trustee need perform only those duties that are specifically set forth in the Indenture and no others, and no implied covenants or obligations will be read into the Indenture against the Trustee.  In case an Event of Default has occurred and is continuing, the Trustee shall exercise those rights and powers vested in it by the Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

(b)           No provision of the Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct.

 

Section 7.02.      Certain Rights of Trustee .  Subject to Trust Indenture Act Sections 315(a) through (d):

 

(1)        In the absence of bad faith on its part, the Trustee may rely, and will be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in the document, but, in the case of any document which is specifically required to be furnished to the Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine whether it conforms to the requirements of the Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

(2)        Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel, each conforming to Section 1.02, and the Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.

 

(3)        The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent (other than an agent who is an employee of the Trustee) appointed with due care.

 

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(4)        The Trustee will be under no obligation to exercise any of the rights or powers vested in it by the Indenture at the request or direction of any of the Holders, unless such Holders have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.

 

(5)        The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.10 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under the Indenture.

 

(6)        The Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(7)        No provision of the Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder, or in the exercise of its rights or powers, unless it receives indemnity satisfactory to it against any loss, liability or expense.

 

(8)        The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.

 

(9)        The permissive rights of the Trustee enumerated herein shall not be construed as duties.

 

(10)     In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(11)     The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified

 

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as so authorized in any such certificate previously delivered and not superseded.

 

Section 7.03.      Individual Rights of Trustee .  The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee.  Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311.  For purposes of Trust Indenture Act Section 311(b)(4) and (6):

 

(a)           “ cash transaction ” means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and

 

(b)           “ self-liquidating paper ” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.

 

Section 7.04.      Trustee’s Disclaimer .  The recitals contained herein and in the Notes (except in the Trustee’s certificates of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee (i) makes no representation as to the validity or adequacy of the Indenture or the Securities, (ii) is not accountable for the Company’s use or application of the proceeds from the Securities and (iii) is not responsible for any statement in the Securities other than its certificate of authentication.

 

Section 7.05.      Notice of Default .  If any Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee in respect of any Securities, the Trustee will send notice of the Default to each Holder of Securities of the affected series within 90 days after it occurs, unless the Default has been cured; provided , that, except in the case of a default in the payment of the principal of or interest on any Securities of the affected series, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is in the interest of the Holders of Securities of the affected series.  Notice to Holders under this Section will be given in the manner and to the extent provided in Trust Indenture Act Section 313(c).

 

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Section 7.06.      Reports by Trustee to Holders .  Within 60 days after each May 15, beginning with May 15, 2018, the Trustee will mail to each Holder, as provided in Trust Indenture Act Section 313(c), a brief report dated as of such May 15, if required by Trust Indenture Act Section 313(a).

 

Section 7.07.      Compensation and Indemnity .

 

(a)           The Company will pay the Trustee compensation as agreed upon in writing for its services.  The compensation of the Trustee is not limited by any law on compensation of a Trustee of an express trust.  The Company will reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee, including the reasonable compensation and expenses of the Trustee’s agents and counsel.

 

(b)           The Company will indemnify the Trustee (and its officers, agents, directors and employees) for, and hold it harmless against, any loss or liability or expense incurred by it without negligence or willful misconduct on its part arising out of or in connection with the acceptance or administration of the Indenture and its duties under the Indenture and the Securities, including the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties under the Indenture and the Securities.  The Trustee shall notify the Company in writing promptly of any claim asserted against the Trustee or any of its agents for which it may seek indemnity.  The Company shall defend the claim and the Trustee shall cooperate and may participate in the defense.  The Trustee and its agents subject to the claim may have separate counsel if the Trustee concludes that there exists a conflict of interest between the Company and the Trustee and its agents subject to the claim in connection with such defense.  The Company need not pay for any settlement made without its written consent, not to be unreasonably withheld.  The Company need not reimburse any expense or indemnify against any loss or liability to the extent incurred by the Trustee through the Trustee’s negligence or willful misconduct.

 

(c)           To secure the Company’s payment obligations in this Section, the Trustee will have a lien prior to the Securities on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of and interest on particular Securities.

 

(d)           The Company’s obligations under this Section 7.07 shall survive any resignation or removal of the Trustee or any termination of this Indenture.

 

(e)           Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(d)

 

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or Section 6.01(e), the expenses and compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.

 

Section 7.08.      Replacement of Trustee .  (a) (1) The Trustee may resign with respect to one or more series of Securities at any time by providing 30 days prior written notice to the Company.

 

(2)        The Trustee may be removed with respect to a series of Securities at any time by written notice to the Trustee from the Holders of a majority in principal amount of such series of Securities at the time Outstanding.

 

(3)        If the Trustee is no longer eligible under Section 7.10 or in the circumstances described in Trust Indenture Act Section 310(b), any Holder of the affected series of Securities that satisfies the requirements of Trust Indenture Act Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee with respect to such series and the appointment of a successor Trustee with respect to such series.

 

(4)        The Company may remove the Trustee with respect to one or more series of Securities if: (i) the Trustee is no longer eligible under Section 7.10, (ii) the Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or other public officer takes charge of the Trustee or its property, or (iv) the Trustee becomes incapable of acting.

 

A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.

 

(b)           If the Trustee has been removed by the Holders of a series of Securities, Holders of a majority in principal amount of such series of Securities at the time Outstanding may appoint a successor Trustee with respect to such series with the consent of the Company.  Otherwise, if the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee with respect to the affected series of Securities.  If the successor Trustee does not deliver its written acceptance within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of such series of Securities at the time Outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the affected series of Securities.

 

(c)           Upon delivery by the successor Trustee of a written acceptance of its appointment to the retiring Trustee and to the Company, (i) the retiring Trustee

 

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will transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07, (ii) the resignation or removal of the retiring Trustee will become effective, and (iii) the successor Trustee will have all the rights, powers and duties of the Trustee with respect to the affected series of Securities under the Indenture.  Upon request of any successor Trustee, the Company will execute any and all instruments for fully vesting in and confirming to the successor Trustee all such rights, powers and trusts.  The Company will give notice of any resignation and any removal of the Trustee with respect to a series of Securities and each appointment of a successor Trustee to all Holders of the affected series of Securities, and include in the notice the name of the successor Trustee and the address of its Corporate Trust Office.

 

(d)           Notwithstanding replacement of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07 will continue for the benefit of the retiring Trustee.

 

(e)           The Trustee agrees to give the notices provided for in, and otherwise comply with, Trust Indenture Act Section 310(b).

 

Section 7.09.      Successor Trustee by Merger .  If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without any further act will be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee in the Indenture.  In case any Securities of any series shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver such Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 7.10.      Eligibility .    Each Trustee must always satisfy the requirements of Trust Indenture Act Section 310(a) and has a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.

 

Section 7.11.      Money Held in Trust .  The Trustee will not be liable for interest on any money received by it except as it may agree in writing with the Company.  Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law and except for money held in trust under Article 8.

 

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ARTICLE 8
DEFEASANCE AND DISCHARGE

 

Section 8.01.      Discharge of Company’s Obligations .  (a) Subject to paragraph (b), the Company’s obligations under the Securities and the Indenture will terminate with respect to the Securities of any series if:

 

(1)        all Securities of such series previously authenticated and delivered (other than (i) destroyed, lost or stolen Securities that have been replaced or (ii) Securities that are paid pursuant to Section 3.01 or (iii) Securities for whose payment money or Governmental Obligations have been held in trust and then repaid to the Company pursuant to Section 8.06) have been delivered to the Trustee for cancellation and the Company has paid all sums due and payable by it with respect to such Securities of such series; or

 

(2)          (i)          the Securities of such series mature within one year, or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption,

 

(ii)        the Company irrevocably deposits or causes to be deposited in trust with the Trustee, as trust funds solely for the benefit of the Holders of Securities of such series, money or Governmental Obligations or a combination thereof sufficient, without consideration of any reinvestment, to pay principal of and interest on the Securities of such series to maturity or redemption, as the case may be, and to pay all other sums due and payable by it hereunder with respect to such series,

 

(iii)       no Event of Default with respect to the Outstanding Securities of such series has occurred and is continuing on the date of the deposit,

 

(iv)       the deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company is a party or by which it is bound, and

 

(v)        the Company delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of the Indenture have been complied with.

 

(b)           After satisfying the conditions in clause (1), only the Company’s obligations with respect to the Securities of such series under Section 7.06  will survive.  After satisfying the conditions in clause (2), only the Company’s obligations in Sections 2.07, 2.08, 2.14, 3.02,

 

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7.06, 7.07, 8.05 and 8.06 will survive, as well as the rights of Holders of outstanding Securities of such series to receive solely from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of and interest on Securities of such series when such payments are due.  In either case, the Trustee upon request will acknowledge in writing the discharge of the Company’s obligations under the Securities of such series and the Indenture other than the surviving obligations.

 

Section 8.02.      Legal Defeasance .  After the 123rd day following the deposit referred to in clause (1) of this Section 8.02, the Company will be deemed to have paid and will be discharged from its obligations in respect of the Securities of such series and the Indenture, other than its obligations in Sections 2.07, 2.08, 2.14, 3.02, 7.07, 7.08, 8.05 and 8.06, and Holders of outstanding Securities of such series will have the right to receive solely from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of and interest on Securities of such series when such payments are due, provided the following conditions have been satisfied:

 

(1)        The Company has irrevocably deposited or caused to be deposited in trust with the Trustee, as trust funds solely for the benefit of the Holders of Securities of such series, money or Governmental Obligations or a combination thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certificate thereof delivered to the Trustee (or, if two or more nationally recognized firms of independent accountants decline to issue such opinion as a matter of policy, in the opinion of the Company’s chief financial officer), without consideration of any reinvestment, to pay principal of and interest on the Securities of such series to maturity or redemption, as the case may be, provided that any redemption before maturity has been irrevocably provided for under arrangements satisfactory to the Trustee.

 

(2)        No Event of Default with respect to the Outstanding Securities of such series has occurred and is continuing on the date of the deposit or occurs at any time during the 123-day period following the deposit.

 

(3)        The deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company is a party or by which it is bound.

 

(4)        The Company has delivered to the Trustee either (x) a ruling received from or published by the Internal Revenue Service to the effect that the beneficial owners of the Securities of such series will not

 

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recognize income, gain or loss for federal income tax purposes as a result of the defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times as would otherwise have been the case or (y) an Opinion of Counsel, based on a change in law after the date of the Indenture, to the same effect as the ruling described in clause (x).

 

(5)        If the Securities of such series are listed on a national securities exchange, the Company has delivered to the Trustee an Officer’s Certificate to the effect that the deposit and defeasance will not cause the Securities to be delisted.

 

(6)        The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance have been complied with.

 

Prior to the end of the 123-day period, none of the Company’s obligations under the Indenture in respect of the Securities of such series will be discharged.  Thereafter, the Trustee upon request will acknowledge in writing the discharge of the Company’s obligations under the Securities of such series and the Indenture in respect of the Securities of such series except for the surviving obligations specified above.

 

Section 8.03.      Covenant Defeasance .  After the 123rd day following the deposit referred to in clause (1) of Section 8.02, the Company’s obligations set forth in Sections 3.04 and 3.06 as well as any additional covenants so specified in a supplemental indenture for such series of Securities, will terminate in respect of the Securities of the applicable series, and clause (c) of Section 6.01 will no longer constitute an Event of Default in respect of such Securities, provided the following conditions have been satisfied:

 

(1)        The Company has complied with clauses (1), (2), (3), (4), (5) and (6) of Section 8.02; and

 

(2)        the Company has delivered to the Trustee an Opinion of Counsel stating that the beneficial owners will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times as would otherwise have been the case.

 

Except as specifically stated above, none of the Company’s obligations under the Indenture will be discharged.

 

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Section 8.04.      Application of Trust Money .  Subject to Section 8.05, the Trustee will hold in trust the money or Governmental Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, and apply the deposited money and the proceeds from deposited Governmental Obligations to the payment of principal of and interest on the Securities of the applicable series in accordance with the Securities of such series and the Indenture.  Such money and Governmental Obligations need not be segregated from other funds except to the extent required by law.

 

Section 8.05.      Repayment of Moneys Held by Paying Agent .  In connection with the satisfaction and discharge of the Indenture with respect to Securities of any series, all moneys or Governmental Obligations then held by any paying agent under the provisions of the Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to the Company or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys or Governmental Obligations.

 

Section 8.06.      Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years .  Subject to Sections 7.07, 8.01, 8.02 and 8.03 and applicable abandoned property laws, the Trustee will promptly pay to the Company upon request any excess money or property held by the Trustee at any time and thereupon be relieved from all liability with respect to such money or property.  The Trustee will pay to the Company upon request any money or property held for payment with respect to any Security of any series that remains unclaimed for two years; provided , that before making such payment the Trustee may at the expense of the Company publish once in a newspaper of general circulation in New York City, or send to each Holder entitled to such money, notice that the money remains unclaimed and that after a date specified in the notice (at least 30 days after the date of the publication or notice) any remaining unclaimed balance of money will be repaid to the Company.  After payment to the Company, Holders entitled to such money must look solely to the Company for payment, unless applicable law designates another Person, and all liability of the Trustee with respect to such money will cease.

 

Section 8.07.      Reinstatement .  If and for so long as the Trustee is unable to apply any money or Governmental Obligations held in trust pursuant to 8.01, 8.02 or 8.03 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under the Indenture and the Securities of the applicable series will be reinstated as though no such deposit in trust had been made.  If the Company makes any payment of principal of or interest on Securities of the applicable series because of the reinstatement of its obligations, it will be subrogated to the rights of the Holders

 

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of such Securities of the applicable series to receive such payment from the money or Governmental Obligations held in trust.

 

ARTICLE 9
AMENDMENTS

 

Section 9.01.      Supplemental Indentures Without Consent of Holders .  Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may amend or modify this Indenture or the Securities of any series or enter into one or more indentures supplemental hereto for any of the following purposes:

 

(i)            to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants, agreements and obligations of the Company herein and in any series of Securities; or

 

(ii)           to add to the covenants of the Company for the benefit of the Holders of any series, or to surrender any right or power herein conferred upon the Company under this Indenture; or

 

(iii)          to evidence and provide for a successor Trustee with respect to the Securities of any series or to add to or change any provision to the extent necessary to appoint a separate Trustee for a specific series of Securities; or

 

(iv)          to cure any ambiguity or defect, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture; provided , that such action pursuant to this clause  (iv) shall not adversely affect the rights of the Holders of any Security in any material respect; or

 

(v)           to add any additional Events of Default for the benefit of the Holders of any series; or

 

(vi)          to provide for any guarantee for the benefit of the Holders of the Securities of any series, to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of any series any property or assets or to confirm and evidence the release, termination or discharge of any such guarantee or security for the Securities of any series when such release, termination or discharge is permitted by the Indenture; or

 

(vii)         to supplement any provision of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance or discharge of any series of Securities; provided , that such change or

 

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modification does not adversely affect the interests of the Holders of any Security; or

 

(viii)        to add, change or eliminate any provision of this Indenture applying to one or more series of Securities; provided , that the Company deems such action necessary or advisable and that such action does not adversely affect the interests of any Holder of any series of Securities in any material respect; or

 

(ix)          to add, change or eliminate any provision of this Indenture to comply with the Trust Indenture Act, or

 

(x)           to provide for the issuance of additional debt securities of any series ranking equally with the Securities (other than the payment of interest accruing prior to the issue date of such further debt securities or except for the first payment of interest following the issue date of such further debt securities); or

 

(xi)          to conform the text of this Indenture or the Securities to any provision of the “Description of Notes” section or equivalent section of any prospectus, prospectus supplement, offering memorandum, offering circular or any other document pursuant to which the Securities of such Series were offered; or

 

(xii)         to provide for uncertificated Securities in addition to or in place of certificated Securities.

 

Section 9.02.      Supplemental Indentures with Consent of Holders .  With the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of all series affected by such amendment or supplemental indenture (voting together as a single class), by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of each such series; provided, however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of a particular series affected thereby,

 

(i)            reduce the rate of or change the time for payment of interest on the Securities of such series

 

(ii)           reduce the principal amount, or extend the fixed maturity, of the Securities of such series; or

 

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(iii)          reduce any redemption price or repurchase price of such series of Securities or amend or modify in any manner adverse to the Holders of such series the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise; or

 

(iv)          make any Security of such series payable in money other than that stated in such Security or other than in accordance with the provisions of this Indenture; or

 

(v)           impair the right of any Holder of such series to receive payment of principal or interest on the Securities of such series on or after the due dates therefor, including waiving any Default with respect to the payment of principal or interest thereon, or to institute suit for the enforcement of any payment on or with respect to the Securities of such series on or after such due dates; or

 

(vi)          change the ranking of the Securities of such series in a manner adverse to the Holders of such series; or

 

(vii)         make any change in the amendment or waiver provisions which require the consent of each Holder of such series affected by such amendment or waiver; or

 

(viii)        reduce the percentage in principal amount Outstanding of the Securities which must consent to an amendment, supplement or waiver or consent to take any action; or

 

(ix)          modify any of the provisions of this Section 9.02 or Section 6.11, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security of such series affected thereby.

 

An amendment, supplemental indenture or waiver which changes, eliminates or waives any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

Except as otherwise provided by the terms of the supplemental indenture, an amendment, supplement or waiver under this Section 9.02 will become effective on receipt by the Trustee of written consents from the Holders of the requisite percentage in principal amount of the Outstanding Securities of such

 

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series affected thereby.  After an amendment, supplement or waiver under this Section becomes effective, the Company will send to the Holders affected thereby a notice (with a copy to the Trustee) briefly describing the amendment, supplement or waiver.  Any failure of the Company to send such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.

 

It shall not be necessary for any Act of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act approves the substance thereof.

 

Section 9.03.      Execution of Supplemental Indentures .  In executing, or accepting the additional trusts created by, any supplemental indenture permitted by Article 9 or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 1.02, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.  Subject to the preceding sentence, the Trustee shall sign such supplemental indenture if the same does not adversely affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise.  The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Section 9.04.      Effect of Supplemental Indentures .  Except as otherwise provided by the terms of the supplemental indenture, upon the execution of any supplemental indenture under this Article 9, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of each series of Securities affected thereby shall be bound thereby, whether any such Security is theretofore or thereafter authenticated and delivered hereunder.  If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the applicable Holder to deliver it to the Trustee so that the Trustee may place an appropriate notation of the changed terms on the Security and return it to such Holder, or exchange it for a new Security that reflects the changed terms.  The Trustee may also place an appropriate notation on any Security thereafter authenticated.  However, the effectiveness of the amendment, supplement or waiver is not affected by any failure to annotate or exchange Securities in this fashion.

 

Section 9.05.      Conformity with Trust Indenture Act .  Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.

 

Section 9.06.      Payments for Consents .  Neither the Company nor any of its subsidiaries or affiliates may, directly or indirectly, pay or cause to be paid any

 

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consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the Securities unless such consideration is offered to be paid or agreed to be paid to every Holder of each series of Securities affected thereby that consent, waive or agree to amend such term or provision within the time period set forth in the solicitation documents relating to the consent, waiver or amendment.

 

Section 9.07.      Reference in Securities to Supplemental Indentures .  Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 9 shall bear a notation in form approved by the Company for such series as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for the Securities of such series then Outstanding.

 

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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

 

 

 

 

FLEX LTD.

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION, as Trustee

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

[SIGNATURE PAGE TO INDENTURE]

 



Exhibit 5.01

 

 

WRITER’S NAME

: Bernie Lee

DIRECT TEL

: +65 6890 7084 / 7752

 

  Jonathan Han

DIRECT FAX

: +65 6302 3143 / 3118

 

 

DIRECT E-MAIL

: bernie.lee@allenandgledhill.com

  jonathan.han@allenandgledhill.com

 

OUR REF

: BLEE/JHANYY/1017011112

YOUR REF

:

 

29 January 2018

 

Flex Ltd.

2 Changi South Lane

Singapore 486123

 

Dear Sirs

 

Registration Statement on Form S-3 of Flex Ltd. (“Flex”)

 

1.                                       We refer to the Registration Statement on Form S-3 (the “ Registration Statement ”) to be filed by Flex with the United States Securities and Exchange Commission (the “ SEC ”) on or about 29 January 2018, in connection with the offer and sale from time to time, in one or more offerings, on a delayed basis, of:

 

(a)                                  ordinary shares in the capital of Flex (the “ Shares ”); and

 

(b)                                  one or more series of debt securities of Flex (the “ Debt Securities ”) to be issued pursuant to an indenture to be entered into between Flex and U.S. Bank National Association, as trustee (the “ Trustee ”), a form of which is included as Exhibit 4.01 to the Registration Statement (the “ Base Indenture ”), and one or more supplements thereto, in each case, establishing the terms of each such series (such Base Indenture, together with the applicable supplement(s) pertaining to the applicable series of Debt Securities, collectively, the “ Indenture ”),

 

in each case as contemplated by the Registration Statement.

 

The Shares and Debt Securities are collectively referred to herein as the “ Securities ”.

 

This opinion is being rendered to you in connection with the filing of the Registration Statement.

 

2.                                       For the purpose of rendering this opinion, we have examined:-

 

(a)                                  a copy of the Constitution of Flex in force as at the date of this opinion (the “ Constitution ”);

 

(b)                                  a copy of Flex’s Certificate Confirming Incorporation of Company dated 26 January 2018 issued by the Accounting and Corporate Regulatory Authority of Singapore confirming

 

Allen & Gledhill LLP

One Marina Boulevard #28-00 Singapore 018989

T +65 6890 7188  F +65 6327 3800  E enquiries@allenandgledhill.com  W www.allenandgledhill.com

 

Allen & Gledhill LLP (UEN/Registration No. T07LL0925F) is registered in Singapore under the Limited Liability Partnerships Act (Chapter 163A) with limited liability.

A list of the Partners and their professional qualifications may be inspected at the address specified above.

 


 

that Flex is incorporated under the Companies Act, Chapter 50 of Singapore (the “ Companies Act ”), Certificate of Incorporation of Private Company, Certificate of Incorporation on Conversion to a Public Company and Certificate of Incorporation on Change of Name of Company;

 

(c)                                   a copy of an excerpt of the resolutions adopted by the Board of Directors of Flex (the “ Board ”) on 12 December 2017 duly certified by the Secretary of Flex (the “ Board Resolutions ”); and

 

(d)                                  such other documents as we have considered necessary or desirable to examine in order that we may give this opinion.

 

Save as expressly provided in paragraph 4 of this legal opinion, we express no opinion whatsoever with respect to any document described in paragraph 2 herein.

 

3.                                       We have assumed for the purpose of rendering this opinion:

 

(a)                                  the genuineness of all signatures on all documents and the completeness, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the completeness, and the conformity to original documents, of all copies or other specimen documents submitted to us and the authenticity of the originals of such latter documents;

 

(b)                                  that all representations and factual statements contained in all the documents listed in paragraph 2 are true and correct;

 

(c)                                   that the copies of each of Flex’s Constitution, Certificate Confirming Incorporation of Company, Certificate of Incorporation of Private Company, Certificate of Incorporation on Conversion to a Public Company and Certificate of Incorporation on Change of Name of Company submitted to us for examination are true, complete and up-to-date copies;

 

(d)                                  that the copy of the Board Resolutions is true, complete and up-to-date and such resolutions have not been rescinded or modified and all authorisations and approvals conferred thereby remain in full force and effect and that no other resolution or other action has been taken which may affect the validity of those resolutions;

 

(e)                                   that none of the parties to any of the Indenture or the Securities nor any of their respective officers or employees has notice of any matter which would adversely affect the validity or regularity of the Board Resolutions;

 

(f)                                    that all relevant documents have been provided to us by the officers of Flex for inspection for purposes of this opinion;

 

(g)                                   that the Base Indenture will be executed in the form as set out in Exhibit 4.01 to the Registration Statement;

 

2


 

(h)                                  there are no provisions of the laws of any jurisdiction (other than Singapore) which will be contravened by the execution or delivery of the Indenture and/or the offering, issue, sale and delivery of the Securities and that, insofar as any obligation expressed to be incurred or performed under the Indenture and to the extent relevant, the Securities, falls to be performed in or is otherwise subject to the laws of any jurisdiction (other than Singapore), its performance will not be illegal by virtue of the laws of that jurisdiction and all such laws have been or will be complied with;

 

(i)                                      that the choice of the governing law of each of the Indenture and the Debt Securities will be made in good faith and will be regarded as a valid and binding selection which will be upheld in the United States federal or state courts, as a matter of the respective applicable laws governing each of the Indenture and Debt Securities, and all other relevant laws except the laws of Singapore;

 

(j)                                     that that all consents, approvals, authorisations, licences, exemptions, or orders required from any governmental or other regulatory authority, body or agency outside Singapore and all other requirements outside Singapore for the legality, validity and enforceability of each of the Indenture and the Securities and the offering, issue, sale or delivery of the Securities have been (and have not been withdrawn) or will be duly obtained or fulfilled, and are and will remain in full force and effect and that any conditions to which they are subject have been (or will be) satisfied;

 

(k)                                  that there are no agreements, documents, arrangements or transactions to which Flex is a party that may in any way prohibit or restrict the issue of the Securities;

 

(l)                                      that there are no agreements, documents, arrangements or transactions to which each party to the Indenture and the Debt Securities has entered into that may in any way prohibit or restrict its right to enter into the Indenture or the Debt Securities (as the case may be) or perform its obligations under the Indenture or the Debt Securities (as the case may be);

 

(m)                              that Flex is solvent at the relevant time of issuance of any of the Shares (including any Shares duly issued upon the exchange or conversion of Debt Securities which are exchangeable or convertible into Shares);

 

(n)                                  that Flex will have, at the time of the individual grants and issuances of the Shares (including any Shares duly issued upon the exchange or conversion of Debt Securities which are exchangeable or convertible into Shares), upon issuance and delivery of certificates (or book-entry notation if uncertificated), a mandate from shareholders of Flex to issue such Shares pursuant to section 161 of the Companies Act (the “ Share Issue Mandate ”) and such Share Issue Mandate will not have expired in accordance with its terms or been previously revoked or varied by Flex in a general meeting;

 

(o)                                  that the issuance of each class or series of Securities will be duly authorised by, and the definitive terms of each class or series of Securities shall have been established in accordance with, resolutions duly passed by the Board (or any authorised committee thereof) or, if required, the shareholders of Flex;

 

3


 

(p)                                  that Flex will issue and deliver the Securities in the manner contemplated by any applicable underwriting, purchase or similar agreement and any Securities issuable upon conversion, exchange or exercise of any other Security will have been authorised and reserved for issuance, in each case within the limits of the then remaining authorised but unreserved and unissued amounts of such Securities;

 

(q)                                  there shall be the absence of fraud, bad faith, undue influence, coercion or duress on the part of any party to the Indenture and the Debt Securities and its respective officers, employees, agents and advisers;

 

(r)                                     that each of the parties to the Indenture and the Debt Securities (if a corporation and other than Flex) is validly incorporated and existing under the laws of its place of incorporation;

 

(s)                                    with respect to any Debt Securities, that:

 

(i)                                      an Indenture relating to such Debt Securities shall be within the capacity and powers of, and shall have been duly authorised, executed and delivered on behalf of Flex;

 

(ii)                                   all terms of such Debt Securities not provided for in such Indenture shall have been established in accordance with the provisions of the Indenture and reflected in appropriate documentation approved by us and, if applicable, executed and delivered by Flex and the Trustee;

 

(iii)                                such Debt Securities shall have been duly executed, authenticated, issued and delivered in accordance with the provisions of such Indenture;

 

(iv)                               such Debt Securities, as executed and delivered, do not violate any law applicable to Flex or result in a default under or breach of any agreement or instrument binding upon Flex; and

 

(v)                                  such Debt Securities, as executed and delivered, comply with all requirements and restrictions, if any, applicable to Flex, in any case whether imposed by any court or governmental or regulatory body having jurisdiction over Flex;

 

(t)                                     (i) that the Indenture and the Securities are within the capacity and powers of, and will be duly authorised, executed, delivered and (in the case of the Securities) issued by or on behalf of the parties thereto other than Flex, (ii) that the Indenture and the Securities will constitute legally valid and binding obligations of the parties thereto other than Flex, enforceable against each of them in accordance with their respective terms, and (iii) that the status of the Indenture and the Securities as legally valid and binding obligations of the parties will not be affected by any (A) breaches of, or defaults under, agreements or instruments, (B) violations of statutes, rules, regulations or court or governmental orders, or (C) failures to obtain required consents, approvals or authorisations from, or to make required registrations, declarations or filings with, governmental authorities;

 

4


 

(u)                                  that in exercising the respective powers of each party to the Indenture to enter into the Indenture and undertake and perform the obligations expressed to be undertaken and performed by it under the Indenture and (in the case of Flex) issue and deliver the Debt Securities and undertake and perform the obligations expressed to be undertaken and performed by it under the Debt Securities, each party (and in the case where the party is a corporation, the directors of such party) to the Indenture will be acting in good faith and in furtherance of the respective substantive objects and for the legitimate purpose of each of the parties to the Indenture, and that the entry into the Indenture by each of the parties thereto and (in the case of Flex) the issue and delivery of the Debt Securities may reasonably be considered to have been in the interests, and for the commercial benefit, of each of the parties to the Indenture and Flex, respectively;

 

(v)                                  that each of the parties to the Indenture and the Debt Securities will not be engaging in misleading or unconscionable conduct or seeking to conduct any relevant transaction or any associated activity in a manner or for a purpose not evident on the face of the Indenture which might render any of the Indenture or the Debt Securities or any relevant transaction or associated activity illegal, void or voidable;

 

(w)                                that all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture and the Securities under the laws of any jurisdiction (other than Singapore) will be duly fulfilled, performed and complied with;

 

(x)                                  that valid consideration will be furnished for the entry into of the Indenture and the Debt Securities;

 

(y)                                  that each of the Indenture and the Debt Securities will constitute legal, valid, binding and enforceable obligations of the parties thereto for all purposes under the laws of all relevant jurisdictions (other than Singapore);

 

(z)                                   that no consent, approval, authorisation or order of or qualification with any governmental or other regulatory authority, body or agency outside Singapore is required for the performance by each of the parties (other than Flex) to the Indenture and the Debt Securities of its respective obligations under the Indenture and the Debt Securities;

 

(aa)                           that the execution of the Indenture, the performance of the obligations under the Indenture, and the issue and the delivery of, and the performance of the obligations, where applicable, under the Securities will be in compliance with (i) applicable laws and regulations in Singapore and (ii) the provisions of the Constitution of Flex;

 

(bb)                           that no foreign law is relevant to or affects the conclusions stated in this opinion, and none of the opinions expressed herein will be affected by the laws (including, without limitation, the public policy) of any jurisdiction outside Singapore, and insofar as the laws of any jurisdiction outside Singapore may be relevant, such laws have been or will be complied with; and

 

5

 

(cc)                             that no Securities will be offered in Singapore in connection with the Registration Statement.

 

4.                                       Based upon and subject to paragraphs 2 and 3, and subject to any matters not disclosed to us, we are of the opinion that:

 

(a)                                  the Shares to be allotted and issued by Flex (including any Shares duly issued upon the exchange or conversion of Debt Securities which are exchangeable or convertible into Shares):

 

(i)                                      when represented by share certificates issued by Flex in respect of such Shares; and

 

(ii)                                   duly registered in the register of members of Flex, in the name of the persons who have purchased the Shares, or in the name of Cede & Co., a partnership organised pursuant to the laws of the State of New York, in the United States of America, as nominee of the Depository Trust Company, as the case may be,

 

will be duly authorised by Flex for issuance and will be legally issued, fully-paid and non-assessable;

 

(b)                                  the Debt Securities, upon issuance and delivery of certificates (or book-entry notation if uncertificated) for such Debt Securities against payment therefor of such lawful consideration as the Board (or an authorised committee thereof) may determine, and, if such Debt Securities are issued in registered form, entries in respect thereof having been duly made in the register maintained in accordance with the Indenture, will be duly authorised by Flex for issuance, legally issued and constitute legal, valid and binding obligations of Flex, enforceable in accordance with their terms.

 

5.                                       For the purposes of this opinion, we have assumed that the term “non-assessable” in relation to the Shares to be issued (including any Shares duly issued upon the exchange or conversion of Debt Securities which are exchangeable or convertible into Shares) means under Singapore law that holders of such Shares, having fully paid up all amounts due on such Shares as to the issue price thereon, are under no further personal liability to contribute to the assets or liabilities of Flex in their capacities purely as holders of such Shares.

 

6.                                       The term “enforceable” as used above means that the obligations assumed or to be assumed by Flex under the Indenture and the Debt Securities are of a type which the Singapore courts enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular:

 

(a)                                  enforcement may be limited by prescription or lapse of time, bankruptcy, insolvency, liquidation, reorganisation and other laws of general application relating to or affecting the rights of creditors;

 

6


 

(b)                                  enforcement may be limited by general principles of equity — for example, equitable remedies may not be available where damages are considered to be an adequate remedy;

 

(c)                                   if any obligation is to be performed in a jurisdiction outside Singapore, it may not be enforceable in Singapore to the extent that performance would be illegal or contrary to public policy under the laws of that jurisdiction;

 

(d)                                  any provision in the Indenture or the Debt Securities which provides that certain calculations and/or certifications will be conclusive and binding (i) will not be effective if such calculations and/or certifications are fraudulent or contain any manifest errors, and (ii) will not necessarily prevent judicial enquiry into the merits of any claim by an aggrieved party;

 

(e)                                   any provision in the Indenture which provides, or which has the effect of providing, for the payment of an increased amount by reason of any default may not be enforceable in a Singapore court if it is construed as a penalty;

 

(f)                                    provisions in the Indenture, if any, restricting competition or trade may not be enforceable as contrary to public policy in Singapore unless a Singapore court considers that such provisions are reasonably necessary for the protection of a legitimate business interest;

 

(g)                                   claims may become barred under the Limitation Act, Chapter 163 of Singapore or may be or become subject to a defence of set-off or counterclaim;

 

(h)                                  any provision in any of the Indenture or the Debt Securities as to severability may not be binding under the law of Singapore and the question of whether or not provisions which are illegal, invalid or unenforceable may be severed from other provisions in order to save such other provisions depends on the nature of the illegality, invalidity or unenforceability in question and would be determined by a Singapore court at its discretion;

 

(i)                                      any term of an agreement may be amended orally by all the parties notwithstanding provisions to the contrary in any of the Indenture or the Debt Securities;

 

(j)                                     the rate of interest recoverable after judgment in the High Court of Singapore is limited to 5.33% p.a. or:

 

(i)                                      such other rate fixed by the Chief Justice of Singapore;

 

(ii)                                   such lower rate as may be directed by the High Court; or

 

(iii)                                unless the parties have agreed otherwise;

 

(k)                                  a Singapore court may refuse to give effect to clauses in any of the Indenture and the Debt Securities in respect of the costs of unsuccessful litigation brought before a Singapore court or where the court has itself made an order for costs;

 

7


 

(l)                                      a Singapore court may stay proceedings if concurrent proceedings are brought elsewhere and/or if there is another clearly more appropriate forum than Singapore;

 

(m)                              if it is necessary to initiate any legal proceedings in Singapore by serving a writ outside the jurisdiction, the leave of court (as to which the court has a discretion) would have to be obtained;

 

(n)                                  the courts of Singapore are bound to follow judicial precedents laid down by the superior courts of Singapore, however, the Court of Appeal (which is the highest court in Singapore) has power to depart from such precedents where adherence will cause injustice in a particular case or constrain the development of law in conformity with the circumstances of Singapore;

 

(o)                                  we express no opinion regarding the right or ability of any party to recover against any other party for diminution in the value of equity securities held by such party;

 

(p)                                  where under the Indenture or, where applicable, any Security, any person is vested with a discretion or may determine a matter in its opinion, that party may be required to exercise its discretion in good faith, reasonably and for a proper purpose, and to form its opinion in good faith and on reasonable grounds;

 

(q)                                  enforcement of any provision of the Indenture may be limited if a court in Singapore holds the relevant provision to have been frustrated by events happening after the execution of the Indenture;

 

(r)                                     a party to a contract may be able to avoid its obligations under that contract (and may have other remedies) where it has been induced to enter into that contract by a misrepresentation or other vitiating factors and the courts of Singapore will generally not enforce an obligation if there has been fraud;

 

(s)                                    any provision in the Indenture or, where applicable, any Security which purports to excuse or protect any party against its own negligence or misconduct or which purports to apply notwithstanding the negligence or misconduct of any party, or excusing a party from a liability or duty otherwise owed, may be limited by law or may not be given effect by the courts of Singapore;

 

(t)                                     whilst a court of Singapore has power to give judgment in a currency other than Singapore dollars, if, subject to the terms of the contract, it is the currency which most truly expresses the plaintiff’s loss, it has the discretion to decline to do so;

 

(u)                                  it is uncertain whether the parties can agree in advance the governing law of claims connected with the contract but which are not claims on the contract, such as a claim in tort;

 

8


 

(v)                                  indemnity provisions in the Indenture and the Debt Securities may not be binding under the laws of Singapore to the extent that performance would be illegal or contrary to public policy under the laws of Singapore;

 

(w)                                we express no opinion on the legality or enforceability of the performance by Flex of any obligations of indemnification or contribution set forth in the Indenture;

 

(x)                                  to the extent that any matter is expressly to be determined by future agreement or negotiation, the relevant provision in the Indenture may be unenforceable or void for uncertainty;

 

(y)                                  any provision of the Indenture stating that a failure or delay, on the part of any party, in exercising any right or remedy under the Indenture shall not operate as a waiver of such right or remedy may not be effective where one party’s conduct or representations had led the other party to reasonably conclude that the party has agreed to waive his rights, notwithstanding this “no waiver” provision;

 

(z)                                   provisions in any of the Indenture or the Debt Securities relating to any additional interest or other sum imposed on any of the parties to the Indenture or the Debt Securities where it has defaulted in the performance of any of its obligations, may not be enforceable in a Singapore court if they are construed as a penalty;

 

(aa)                           a court in Singapore will not be automatically bound to stay proceedings brought in its jurisdiction despite the existence of an exclusive jurisdiction provision in an agreement naming the foreign jurisdiction where the proceedings should be brought. The Singapore courts have the discretion as to whether or not to grant an application for a stay notwithstanding such an exclusive jurisdiction clause;

 

(bb)                           it is possible that a court in Singapore would hold that any judgment (whether in Singapore or elsewhere) given in relation to the Indenture supersedes the specific provisions of the Indenture for all intents and purposes, with the effect that any obligations imposed upon each of the parties under the Indenture, which are expressed to apply both before and after judgment, might not be held to survive any judgment;

 

(cc)                             certain laws, directives, orders and other regulations (whether relating to United Nations sanctions or otherwise) have in the past been and may from time to time be enacted, passed or issued, the effect of which as a matter of Singapore law might be to restrict the making of any payment and/or the performance of any other obligation under the Indenture;

 

(dd)                           except as may be provided under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore, under general principles of Singapore law, a person who is not a contracting party to an agreement is not entitled to the benefits of the agreement and may not enforce the agreement;

 

9


 

(ee)                             we express no opinion on tax matters and in particular express no opinion on the tax consequences of any transaction contemplated by the Indenture or any related document; and

 

(ff)                               we express no opinion on the irrevocability of the appointment of an agent to accept service of process.

 

7.                                       We are not responsible for investigating or verifying the accuracy or completeness of any facts or information, including statements of foreign law, or the reasonableness of any assumptions or statements of opinion or intention contained in any document described in paragraph 2. In addition, we are not responsible for investigating or verifying that no material facts have been omitted from any document described in paragraph 2.

 

8.                                       We express no opinion as to the validity, binding effect or enforceability of any provision in the Indenture or, where applicable, the Securities by reference to a law other than that of Singapore, or as to the availability in Singapore of remedies which are available in other jurisdictions.

 

9.                                       This opinion relates only to the laws of general application of the Republic of Singapore as at the date hereof and as currently applied by the courts of the Republic of Singapore, and is given on the basis that it will be governed by and construed in accordance with the laws of the Republic of Singapore. We have made no investigation of, and do not express or imply any views on, the laws of any country other than the Republic of Singapore.

 

10.                                With respect to matters of fact material to this opinion, we have relied on the statements of the responsible officers of Flex.

 

11.                                Our advice is strictly limited to matters stated in this opinion and is not to be construed as extending by implication to all the documents listed in paragraph 2 above, or to any other matter or document in connection with, or referred to, in such document.

 

12.                                We consent to the use and filing of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement (including the reference to our name under the caption “Legal Matters”). In giving this consent, we do not hereby admit and shall not be deemed to admit that we come within the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933, as amended.

 

13.                                This opinion is addressed to Flex solely for its own benefit. Save for the filing of this opinion with the SEC as an exhibit to the Registration Statement, it is not to be transmitted to, nor is it to be relied upon by, any other person or quoted or referred to in any public document or filed with any governmental agency or other person without our consent in writing. We do not accept any liability to anyone other than Flex (even though you may have provided a copy to another person in accordance with the terms of this paragraph) without our express consent.

 

14.                                This opinion is given on the basis that there has been no amendment to or termination or replacement of the documents, authorisations and approvals referred to in paragraph 2 of this opinion. This opinion is also given on the basis of the laws of the Republic of Singapore in force

 

10


 

as at the date of this opinion and we undertake no responsibility to notify you of any change in the laws of the Republic of Singapore after the date of this opinion.

 

Yours faithfully

 

  /s/ Allen & Gledhill LLP

 

Allen & Gledhill LLP

 

11



Exhibit 5.02

 

Curtis, Mallet-Prevost, Colt & Mosle LLP

 

Almaty

Ashgabat

Astana

Beijing

Buenos Aires

Dubai

Frankfurt

Geneva

 

Houston

London

Mexico City

Milan

Muscat

Paris

Rome

Washington, D.C.

 

 

 

101 Park Avenue

New York, New York 10178-0061

 

Telephone +1 212 696 6000

Facsimile +1 212 697 1559

www.curtis.com

 

 

January 29, 2018

 

Flex Ltd.

 

 

2 Changi South Lane

 

 

Singapore 486123

 

 

 

Re: Registration Statement on Form S-3

 

Ladies and Gentlemen:

 

We have acted as special United States counsel to Flex Ltd., a company organized under the laws of Singapore (the “ Company ”), in connection with the filing by the Company with the U.S. Securities and Exchange Commission (the “ Commission ”) of a registration statement on Form S-3 (the “ Registration Statement ”), including a base prospectus (the “ Base Prospectus ”), which provides that it will be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus, a “ Prospectus ”), under the Securities Act of 1933, as amended (the “ Act ”), relating to the registration of the offer and sale from time to time, in one or more offerings, of (i) ordinary shares, no par value and (ii) one or more series of the Company’s debt securities (collectively, “ Debt Securities ”) to be issued under an indenture to be entered into between the Company (acting through its Bermuda branch), as issuer, and U.S. Bank National Association, as trustee (a form of which is included as Exhibit 4.01 to the Registration Statement) and one or more supplements thereto (such indenture, together with the applicable supplement thereto pertaining to the applicable series of Debt Securities, the “ Applicable Indenture ”).

 

In rendering the opinion expressed below, we have examined such matters of fact, and have made such investigations of law, as we have deemed necessary or appropriate as a basis for the opinion express below. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.

 

We have assumed (i) that each series of Debt Securities and the Applicable Indenture governing such series of Debt Securities (collectively, the “ Documents ”) will be governed by the internal laws of the State of New York, (ii) that each of the Documents has been or will be duly authorized by all requisite action, corporate or otherwise, (iii) that each of the Documents has been or will be duly executed and delivered by the parties thereto, (iv) that each of the Documents constitutes or will constitute legally valid and binding obligations of the parties thereto other than the Company, enforceable against each of them in accordance with

 


 

their respective terms, and (v) that the status of each of the Documents as legally valid and binding obligations of the parties will not be affected by any (a) breaches of, or defaults under, agreements or instruments, (b) violations of statutes, rules, regulations or court or governmental orders, or (c) failures to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.

 

Based upon the foregoing and subject to the further qualifications and limitations set forth below, we are of the opinion that, when the Applicable Indenture has been duly authorized, executed and delivered by all necessary corporate action of the Company, and when the specific terms of a particular series of Debt Securities have been duly established in accordance with the terms of the Applicable Indenture and authorized by all necessary corporate action of the Company, and such Debt Securities have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of the Applicable Indenture and in the manner contemplated by the applicable Prospectus and by such corporate action, such Debt Securities will be the legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

 

Our opinion is subject to (i) bankruptcy, insolvency (including, without limitation, all laws relating to preferences, fraudulent transfers and fraudulent conveyances), suspension of payments, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights, (ii) general equitable principles (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of any purported waiver of such concepts), regardless of whether enforcement is sought in a proceeding at law or equity and (iii) principles limiting the availability of the remedy of specific performance.

 

The foregoing opinion is limited to the matters expressly set forth herein, and no opinion is implied or may be inferred beyond the matters expressly stated.

 

This opinion is limited to questions arising under the laws of the State of New York as in effect on the date hereof, and we express no opinion as to any law other than the laws of such jurisdiction. Without limiting the generality of the foregoing, this opinion does not cover any matters arising under the laws of the jurisdiction of organization of the Company, or other political subdivisions thereof, or under any treaties or conventions to which such jurisdiction may be a party, or by which it may be bound.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the caption “Legal Matters” in the prospectus that forms a part of the Registration Statement. In giving this consent, we do not hereby admit that we are (i) “experts” within the meaning of Section 11 of the Act or the rules and regulations of the Commission promulgated thereunder or (ii) within the category of persons whose consent is required by Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.

 

 

Very truly yours,

 

 

 

/s/ Curtis, Mallet-Prevost, Colt & Mosle LLP

 

2



Exhibit 12.01

 

Flex Ltd.

Statement Regarding Computation of Ratio of Earnings to Fixed Charges

 

For purposes of calculating the ratio of earnings to fixed charges, earnings is the amount resulting from (1) adding (a) pretax income from continuing operations, before adjustment for income or loss from equity investees, (b) fixed charges, (c) amortization of capitalized interest and (d) distributed income of equity investees and (2) subtracting interest capitalized. For purposes of calculating the ratio of earnings to fixed charges, fixed charges is the sum of (x) interest expensed and capitalized, (y) amortized premiums, discounts and capitalized expenses related to indebtedness and (z) an estimate of interest within rental expense.

 

 

 

Fiscal Year Ended March 31,

 

Nine Months
Ended
December 31,

 

 

 

2013

 

2014

 

2015

 

2016

 

2017

 

2017

 

 

 

($’s in thousands)

 

Calculation of Earnings:

 

 

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

302,502

 

$

365,594

 

$

600,801

 

$

442,552

 

$

322,795

 

$

453,217

 

Provision for income taxes

 

26,313

 

34,860

 

69,854

 

10,594

 

51,284

 

56,953

 

Income from continuing operations before income taxes

 

$

328,815

 

$

400,454

 

$

670,655

 

$

453,146

 

$

374,079

 

$

510,170

 

Plus:

 

 

 

 

 

 

 

 

 

 

 

 

 

Fixed charges

 

$

73,414

 

$

85,394

 

$

81,062

 

$

103,491

 

$

113,569

 

$

95,213

 

Capitalized interest

 

(87

)

—

 

—

 

(664

)

(1,018

)

(756

)

Distributed income of equity investees

63

 

80

 

22

 

3,061

 

—

 

34

 

Amortization of previously capitalized interest

 

1,065

 

1,079

 

1,079

 

490

 

373

 

273

 

Total earnings

 

$

403,270

 

$

487,007

 

$

752,818

 

$

559,524

 

$

487,003

 

$

604,934

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Calculation of Fixed Charges:

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest on all indebtedness and amortization of debt discount and expense

 

$

58,790

 

$

75,288

 

$

72,507

 

$

93,578

 

$

103,561

 

$

87,509

 

Capitalized interest

 

87

 

—

 

—

 

664

 

1,018

 

756

 

Discount, premium and capitalized expenses related to Indebtedness

 

10,112

 

4,562

 

3,870

 

4,390

 

4,417

 

3,145

 

Interest factor attributable to rentals

 

4,425

 

5,544

 

4,685

 

4,859

 

4,573

 

3,803

 

Total Fixed Charges

 

$

73,414

 

$

85,394

 

$

81,062

 

$

103,491

 

$

113,569

 

$

95,213

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ratio of Earnings to Fixed Charges

 

5.5x

 

5.7x

 

9.3x

 

5.4x

 

4.3x

 

6.4x

 

 



Exhibit 15.01

 

LETTER IN LIEU OF CONSENT OF DELOITTE & TOUCHE LLP

 

January 29, 2018

 

 

Flex Ltd.

2 Changi South Lane

Singapore 486123

 

We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the unaudited interim financial information of Flex Ltd. and subsidiaries (collectively, the “Company”)  for the three-month periods ended June 30, 2017 and July 1, 2016, and have issued our report dated August 1, 2017, for the three- and six-month periods ended September 29, 2017 and September 30, 2016, and have issued our report dated October 30, 2017, and for the three- and nine-month periods ended December 31, 2017 and 2016, and have issued our report dated January 26, 2018. As indicated in such reports, because we did not perform an audit, we expressed no opinion on that information.

 

We are aware that our reports referred to above, which were included in your Quarterly Reports on Form 10-Q for the quarters ended June 30, 2017, September 29, 2017, and December 31, 2017, are being incorporated by reference in this Registration Statement.

 

We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.

 

/s/ DELOITTE & TOUCHE LLP

 



Exhibit 23.01

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated May 16, 2017, relating to the consolidated financial statements of Flex Ltd. and subsidiaries (the “Company”), and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Flex Ltd. for the year ended March 31, 2017, and to the reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.

 

/ s/ DELOITTE & TOUCHE LLP

 

 

 

 

 

San Jose, California

 

January 29, 2018

 

 



Exhibit 25.01

 

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM T-1

 

STATEMENT OF ELIGIBILITY UNDER

THE TRUST INDENTURE ACT OF 1939 OF A

CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

Check if an Application to Determine Eligibility of

a Trustee Pursuant to Section 305(b)(2) o

 

 

U.S. BANK NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

 

31-0841368

I.R.S. Employer Identification No.

 

800 Nicollet Mall
Minneapolis, Minnesota

 

55402

(Address of principal executive offices)

 

(Zip Code)

 

Paula Oswald

U.S. Bank National Association

633 West Fifth Street, 24 th  Floor, Los Angeles, CA  90071

(213) 615-6043

(Name, address and telephone number of agent for service)

 

FLEX LTD.

(Exact name of obligor as specified in its charter)

 

Singapore

 

Not Applicable

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

2 Changi South Lane, Singapore

 

486123

(Address of Principal Executive Offices)

 

(Zip Code)

 

Debt Securities

(Title of the Indenture Securities)

 

 

 


 

FORM T-1

 

Item 1.      GENERAL INFORMATION .   Furnish the following information as to the Trustee.

 

a)                        Name and address of each examining or supervising authority to which it is subject.

 

Comptroller of the Currency

Washington, D.C.

 

b)    Whether it is authorized to exercise corporate trust powers.

 

Yes

 

Item 2.     AFFILIATIONS WITH OBLIGOR.  If the obligor is an affiliate of the Trustee, describe each such affiliation.

 

None

 

Items 3-15                                      Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

 

Item 16.     LIST OF EXHIBITS:   List below all exhibits filed as a part of this statement of eligibility and qualification.

 

1.               A copy of the Articles of Association of the Trustee.*

 

2.               A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

 

3.               A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3.

 

4.               A copy of the existing bylaws of the Trustee.**

 

5.               A copy of each Indenture referred to in Item 4.  Not applicable.

 

6.               The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

 

7.               Report of Condition of the Trustee as of September 30, 2017 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

 

* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

 

** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR,  Registration Number 333-199863 filed on November 5, 2014.

 

2


 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles, California  on the 22nd day of January, 2018.

 

 

By:

/s/ Paula Oswald

 

 

Paula Oswald

 

 

Vice President

 

3


 

Exhibit 2

 

Office of the Comptroller of the Currency

Washington, DC 20219

 

CERTIFICATE OF CORPORATE EXISTENCE

 

I, Keith A. Noreika, Acting Comptroller of the Currency, do hereby certify that:

 

1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

 

“U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.

 

 

 

IN TESTIMONY WHEREOF, today, June 7, 2017, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.

 

 

 

 

 

Acting Comptroller of the Currency

 

 

 

 

 

 

 

 

 

 

 

 

 

4


 

Exhibit 3

 

Office of the Comptroller of the Currency

Washington, DC 20219

 

CERTIFICATE OF FIDUCIARY POWERS

 

I, Keith A. Noreika, Acting Comptroller of the Currency, do hereby certify that:

 

1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

 

2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptoroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.

 

 

 

IN TESTIMONY WHEREOF, today, June 7, 2017, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.

 

 

 

 

 

Acting Comptroller of the Currency

 

 

 

 

 

 

 

 

 

 

 

 

 

5


 

Exhibit 6

 

CONSENT

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

 

Dated:  January 22, 2018

 

 

 

By:

/s/ Paula Oswald

 

 

Paula Oswald

 

 

Vice President

 

6


 

Exhibit 7

U.S. Bank National Association

Statement of Financial Condition

As of 9/30/2017

 

($000’s)

 

 

 

9/30/2017

 

Assets

 

 

 

Cash and Balances Due From

 

$

20,502,653

 

Depository Institutions

 

 

 

Securities

 

110,797,206

 

Federal Funds

 

24,647

 

Loans & Lease Financing Receivables

 

277,953,611

 

Fixed Assets

 

4,538,527

 

Intangible Assets

 

12,820,876

 

Other Assets

 

25,614,306

 

Total Assets

 

$

452,251,826

 

 

 

 

 

Liabilities

 

 

 

Deposits

 

$

353,914,855

 

Fed Funds

 

992,263

 

Treasury Demand Notes

 

0

 

Trading Liabilities

 

989,885

 

Other Borrowed Money

 

31,965,947

 

Acceptances

 

0

 

Subordinated Notes and Debentures

 

3,300,000

 

Other Liabilities

 

14,438,977

 

Total Liabilities

 

$

405,601,927

 

 

 

 

 

Equity

 

 

 

Common and Preferred Stock

 

18,200

 

Surplus

 

14,266,915

 

Undivided Profits

 

31,565,657

 

Minority Interest in Subsidiaries

 

799,127

 

Total Equity Capital

 

$

46,649,899

 

 

 

 

 

Total Liabilities and Equity Capital

 

$

452,251,826

 

 

7