exv10w3



 







Exhibit 10.3




NORTEL NETWORKS LIMITED




as Seller




and




FLEXTRONICS TELECOM SYSTEMS LTD.




as Purchaser




 





FIFTH AMENDING AGREEMENT TO ASSET PURCHASE AGREEMENT




May 8, 2006




 





Stikeman Elliott LLP




 









 








FIFTH AMENDING AGREEMENT

TO ASSET PURCHASE AGREEMENT




     THIS FIFTH AMENDING AGREEMENT TO ASSET PURCHASE AGREEMENT is made as of the 8th day
of May, 2008 (“Amending Agreement”) by and among Flextronics Telecom Systems Ltd., a Mauritius
corporation (“Purchaser”), Flextronics International Ltd., a Singapore corporation acting through
its Hong Kong office (the “Guarantor”) and Nortel Networks Limited, a Canadian corporation
(“Seller”).



     WHEREAS the Purchase, the Seller and the Guarantor (collectively the “Asset Purchase Agreement
Parties”) entered into an Asset Purchase Agreement dated as of June 29, 2004, whereby the Seller
agreed to sell, or cause the Designated Sellers to sell, as the case may be, and the Purchaser
agreed to purchase, or cause the Designated Purchasers to purchase, as the case may be, the Assets
related to the Operations (the “Purchase Agreement”);



     AND WHEREAS the Asset Purchase Agreement Parties entered into an amending agreement dated as
of the 1st day of November, 2004 (the “First Amending Agreement”), whereby the Parties
amended certain terms and conditions of the Purchase Agreement and certain of the Transaction
Documents;



     AND WHEREAS the Asset Purchase Agreement Parties entered into a second amending agreement
dated as of the 7th day of February, 2005 (the “Second Amending Agreement”), whereby the
Parties amended certain terms and conditions of the Purchase Agreement and certain of the
Transaction Documents;



     AND WHEREAS the Asset Purchase Agreement Parties entered into a third amending agreement dated
as of the 22nd day of August, 2005 (the “Third Amending Agreement”), whereby the Parties
amended certain terms and conditions of the Purchase Agreement and certain of the Transaction
Documents;



     AND WHEREAS immediately prior to the execution of this Agreement the Asset Purchase Agreement
Parties entered into a fourth amending agreement dated as of the 8th day of May, 2006
(the “Fourth Amending Agreement”), whereby the Parties amended certain terms and conditions of the
Purchase Agreement and certain of the Transaction Documents;



     AND WHEREAS the Purchaser and Nortel Networks U.K. Limited completed as of the 1st
day of November, 2004 the Facility/Design Closing pertaining to the Design Operations carried on by
the UK Design Employees;



 









 





     AND WHEREAS the Purchaser, Seller and Nortel Networks Technology Corporation completed as of
the 1st day of November, 2004 the Facility/Design Closing pertaining to the Design
Operations carried on by the Canada Design Employees at the Ottawa Lab 2/Lab 10 Facility;



     AND WHEREAS the Purchaser and the Seller completed as of the 7th day of February,
2005 the Facility/Design Closing for the Montreal Ban 1 Facility and the Montreal Ban 3 Facility;



     AND WHEREAS the Purchaser and the Seller completed as of the 22nd day of August, 2005 the
Facility/Design Closing for the Chateaudun Facility (the “Chateaudun Closing”);



     AND WHEREAS the Asset Purchase Agreement Parties agreed that the Seller shall retain, and the
Purchaser shall not purchase, the Monkstown Facilities and entered into the Fourth Amending
Agreement to reflect such agreement; and



     AND WHEREAS the Asset Purchase Agreement Parties have agreed to complete the Closing for the
Calgary Westwinds Facility on May 8, 2006 (the “Calgary Closing”), and have agreed to enter into
this Amending Agreement concurrently with this transaction; and



     AND WHEREAS the Asset Purchase Agreement Parties have further agreed to amend certain
additional terms and conditions of the Purchase Agreement and certain of the Transaction Documents
in accordance with the provisions of this Amending Agreement;



     NOW THEREFORE, in consideration of the mutual covenants herein contained, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as follows:



ARTICLE 1

DEFINITIONS




Section 1.1 Capitalized Terms and Section References.




     All capitalized terms unless otherwise defined herein shall have the meaning ascribed thereto
in the Purchase Agreement, and all section references unless otherwise specified shall refer to the
Purchase Agreement.



 









 





ARTICLE 2

EMPLOYMENT OFFERS BY AFFILIATES OF THE PURCHASER

TO ALBERTA EMPLOYEES AND U.S. EMPLOYEES




Section 2.1 Alberta Employees




     The parties hereby acknowledge that for purposes of Exhibits D-3 and D-3A, and the schedules
thereto, the term “Designated Purchaser”, insofar as it relates to the Alberta Employees, shall
refer to Flextronics (Canada) Inc.



Section 2.2 U.S. Employees




     The parties hereby acknowledge that for the purposes of Exhibit D-9, D-9A and D-9B, and the
schedules thereto, the term “Designated Purchaser” refers to Flextronics International U.S.A., Inc.



ARTICLE 3

AMENDMENTS TO THE PURCHASE AGREEMENT




Section 3.1 Leased PC Equipment




     Pursuant to Section 2.6 of the Asset Purchase Agreement, the Seller and Purchaser agreed to
certain matters regarding Leased PC Equipment. Subsequent to the Chateaudun Closing the Seller
revised its agreement with the vendor that provided the desktop and other PC support, and the
Seller purchased from that vendor the equipment that was formerly Leased PC Equipment. In order to
reflect this change, the following is hereby inserted after Section 2.6:




“Section 2.6A Certain Personal Computers. With respect to any Facility / Design
Closing which occurs after December 31, 2005, the Parties hereby agree as follows:




	 	(1)	 	Seller or the Designated Seller now own certain of the PCs and
ancillary equipment used by the Employees in the Operations which were
previously leased (collectively, the “Previously Leased PC Equipment”). The
Parties agree that, in accordance with the specific terms of this Section
2.6A, these PCs and ancillary equipment form part of the Facility/Design
Assets. The temporary use by the Purchaser and the Designated Purchaser, as
the case may be, following the applicable Closing Date of Previously Leased PC
Equipment shall be governed by the Shared Services Agreement.
	 
	 	(2)	 	The Parties acknowledge the Purchaser and its Affiliates may, but
shall not be obligated to purchase such equipment from the




 









 






	 	 	 	Seller or the Designated Seller, as the case may be, following the expiry
of the Shared Services Agreement.
	 
	 	(3)	 	Schedule 2.6A lists and separately identifies each piece of
Previously Leased PC Equipment used in the Operations. No later than (30)
days prior to the termination of the applicable “SSA Period” (as that term is
defined in the Shared Services Agreement), the Purchaser shall be entitled to
request to purchase such equipment. The Seller will notify the Purchaser of
the proposed transfer date (the “Transfer Date”) and the value (the “Transfer
Value”), which amount shall be the Seller’s or Designated Seller’s, as the
case may be, net book value of each item of such equipment as of the Transfer
Date. Upon receipt of such notification, the Purchaser or relevant Designated
Purchasers shall promptly advise the Seller whether it wishes to purchase the
Previously Leased PC Equipment and, if it wishes to make such a purchase, upon
receipt of a bill of sale from the Seller evidencing transfer of title of such
Previously Leased PC Equipment, the Purchaser agrees to pay to the Seller as
agent for the relevant Designated Seller on the relevant Transfer Date, (in
immediately available funds in United States Dollars), the Transfer Value of
the Previously Leased PC Equipment being transferred (and any applicable
Transfer Taxes), in which case such equipment shall be deemed to be Owned
Equipment and transferred pursuant to the terms of this Agreement as part of
the transfer of the Facility/Design Assets for the applicable Facility or the
Design Operations, as the case may be.”





ARTICLE 4

DELIVERED AND REVISED SCHEDULES AND EXHIBITS




Section 4.1 Delivered Schedules to the Purchase Agreement.




     In relation to the Calgary Closing and pursuant to Section 5.1(3) of the Purchase Agreement,
the Parties hereby acknowledge delivery by the Seller or Purchaser, as the case may be, and
acceptance by the Seller or Purchaser, as the case may be, of the delivered schedules attached to
this Amending Agreement as Exhibit ”A”. For greater certainty, these schedules are provided
only in relation to the Calgary Closing.



 









 





Section 4.2 List of Delivered Schedules.




     The schedules delivered pursuant to Section 4.1 of this Agreement are listed on Exhibit
“B”.


Section 4.3 Exhibits to the Nortel Proprietary Software License Agreement.




     The complete list of Nortel Business Software Applications, which is Exhibit A to the Nortel
Proprietary Software License Agreement, is attached as Exhibit “C” hereto.



ARTICLE 5

FULL FORCE




Section 5.1 Full Force and Effect.




     Other than for the foregoing amendments and for the correction set forth in Section 5.2 below,
the Purchase Agreement and certain schedules thereto, all other agreements agreed to or entered
into as of June 29, 2004, the First Amending Agreement, the Second Amending Agreement, the Third
Amending Agreement and the Fourth Amending Agreement shall remain in full force and effect,
unamended.



Section 5.2 Correction to Prior Amending Agreements.




     Article 6 of each of the Second Amending Agreement and the Third Amending Agreement are hereby
amended to delete the word “Ontario” and replace it with “Alberta”.



ARTICLE 6

GENERAL




Section 6.1 Governing Law.




     This Amending Agreement shall be governed by and construed in accordance with the laws of the
Province of Alberta and the laws of Canada applicable therein.



Section 6.2 Counterparts.




     This Amending Agreement may be executed in one or more counterparts (including counterparts by
facsimile), each of which shall be deemed an original and all of which together constitute one and
the same instrument.



 









 





     IN WITNESS WHEREOF the parties hereto have duly executed this Fifth Amending Agreement as of the
day, month and year first above written.



	 	 	 	 	 
	 	 	FLEXTRONICS TELECOM SYSTEMS LTD.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ M. Marimuthu
	 

	 	 	 	 
	 

	 	 	 	Name: Manny Marimuthu
	 

	 	 	 	Title: Authorized Signatory
	 
	 	 	 	 
	 	 	NORTEL NETWORKS LIMITED
	 
	 	 	 	 
	 

	 	By:
	 	J. Joel Hackney
	 

	 	 	 	 
	 

	 	 	 	Name: Joel Hackney
	 

	 	 	 	Title: Senior Vice-President,
	 

	 	 	 	Global Supply Chain and Quality
	 
	 	 	 	 
	 	 	FLEXTRONICS INTERNATIONAL LTD., acting through its Hong Kong branch
	 
	 	 	 	 
	 

	 	By:
	 	/s/ M. Marimuthu
	 

	 	 	 	 
	 

	 	 	 	Name: Manny Marimuthu
	 

	 	 	 	Title: Authorized Signatory






 










 






EXHIBIT “A”

DELIVERED SCHEDULES




See attached.




 









 








EXHIBIT “B”

LIST OF DELIVERED SCHEDULES




	 	 	 
	Schedule	 	Delivering Party
	Schedule 1.1 — Designated Purchasers and Purchase Price Allocations

	 	NNL / Flex
	Schedule 1.1(33) — Collective Labour Agreements

	 	NNL
	Schedule 1.1(37) — Contracts

	 	NNL
	Schedule 1.1(44) — Design Employees

	 	NNL
	Schedule 1.1(57) — End of Life Inventory

	 	NNL
	Schedule 1.1(63) — Equipment At Third Party Locations

	 	NNL
	Schedule 1.1(113) — Inventory

	 	NNL
	Schedule 1.1(118) — IS Software

	 	NNL
	Schedule 1.1(122) — Key Employees

	 	NNL
	Schedule 1.1(123)(i) — NNL’s “Knowledge” List

	 	NNL
	Schedule 1.1(123)(ii) — Flex’s “Knowledge” List

	 	Flex
	Schedule 1.1(125) — Leased Equipment

	 	NNL
	Schedule 1.1(133) — Logistics Employees

	 	NNL
	Schedule 1.1(173) — Permitted Encumbrances

	 	NNL
	Schedule 1.1(199) — Repair Employees

	 	NNL
	Schedule 1.1(200) — Repair Inventory

	 	NNL
	Schedule 2.1(1)(d) — Owned Equipment

	 	NNL
	Schedule 2.1(1)(l) — Operating Permits

	 	NNL
	Schedule 2.1(1)(n) — Security Deposits

	 	NNL
	Schedule 2.1(1)(q) — Prepaid Expenses

	 	NNL
	Schedule 2.1(2)(p) — Other Excluded Assets

	 	NNL
	Schedule 2.3(2) — Cash Flow Payments

	 	NNL
	Schedule 2.6 — List of PCs and Ancillary Equipment To Be Transferred

	 	NNL
	Schedule 2.6A — List of Previously Leased PCs and Ancillary Equipment
To Be Transferred

	 	NNL
	Schedule 3.2(2)
— Flex’ Conflicts Exceptions

	 	Flex
	Schedule 3.6 — Flex’ Employee Plans and Actions

	 	Flex
	Schedule 4.1(3) — Nortel Subsidiaries Conducting Operations

	 	NNL
	Schedule 4.10 — Litigation

	 	NNL
	Schedule 4.11(1) — NNL’s Employee Plans

	 	NNL
	Schedule 4.11(2) — Compensation and Benefit Claims

	 	NNL
	Schedule 4.12(1) — Employees

	 	NNL
	Schedule 4.12(2) — Work Stoppages

	 	NNL
	Schedule 4.12(3) — Compliance with Employment Law Exception

	 	NNL
	Schedule 4.12(4) — Leave Employees

	 	NNL






 









 






	 	 	 
	Schedule	 	Delivering Party
	Schedule 4.12(5) — Long-Term Disability Leave Employees

	 	NNL
	Schedule 4.12(6) — Labour Relations Exceptions

	 	NNL
	Schedule 4.12(7) — Visa Employees

	 	NNL
	Schedule 4.12(8) — Workers’ Compensation Law Exceptions

	 	NNL
	Schedule 4.12(9) — Employee Accrued and Unused Vacation

	 	NNL
	Schedule 4.12(10) — Design, Repair and Logistics Employees

	 	NNL
	Schedule 4.12(11) — Collective Labour Agreement

	 	NNL
	Schedule 4.12(13) — U.S. Employee Job-Related Felony Convictions

	 	NNL
	Schedule 4.15 — Inventory Exceptions

	 	NNL
	Schedule 4.15 (1) — Inventory Forecasts

	 	NNL
	Schedule 4.17 — Equipment Exceptions

	 	NNL
	Schedule 4.19 — Sufficiency of Assets

	 	NNL
	Schedule 4.2(2) — NNL’s Conflicts Exceptions

	 	NNL
	Schedule 4.20 — Other Purchase Agreements

	 	NNL
	Schedule 4.21 — Government Assistance Programs

	 	NNL
	Schedule 4.3 — Financial Information

	 	NNL
	Schedule 4.5 — Absence of Certain Developments

	 	NNL
	Schedule 4.6 — Compliance with Laws, Permits and Licenses Exceptions

	 	NNL
	Schedule 4.8 — Contracts Exceptions

	 	NNL
	Schedule 4.8(9) — Other Third Party Payment Exceptions

	 	NNL
	Schedule 4.8(10) — Company-Wide Contracts Rights or Licenses

	 	NNL
	Schedule 4.9(1) — Other Intellectual Property Agreements/ Obligations

	 	NNL
	Schedule 4.9(2) — Intellectual Property Rights Claims Exceptions

	 	NNL
	Schedule 4.9(3) — Intellectual Property Rights Infringement Exceptions

	 	NNL
	Schedule 5.1(2) — Filings and Approvals

	 	Flex
	Schedule 5.2 — Operation of Business Exception

	 	NNL






 









 






EXHIBIT “C”

“Exhibit A” to the Nortel Proprietary Software License Agreement




See Attached.