REGISTRATION RIGHTS AGREEMENT Dated as of July 31, 2007 among BRIGHTPOINT, INC. and DANGAARD HOLDING A/S
Exhibit 4.2
Dated as of July 31, 2007
among
BRIGHTPOINT, INC.
and
DANGAARD HOLDING A/S
This Registration Rights Agreement (the “Agreement”) is made and entered into this
31st day of July 2007 between Brightpoint, Inc., an Indiana corporation (the “Company”),
and Dangaard Holding A/S, a Danish company (the “Shareholder”).
This Agreement is made pursuant to the Stock Purchase Agreement, dated February 19, 2007, by
and among the Company, Dangaard Telecom A/S, a Danish company (“Target”), the Shareholder and
Nordic Capital Fund VI (for purposes of Sections 6.16 and 12.14 only), consisting of: Nordic
Capital VI Alpha, L.P. and Nordic Capital Beta, L.P., Jersey limited partnerships acting through
their general partner Nordic Capital VI Limited, a Jersey company, NC VI Limited, a Jersey company,
and Nordic Industries Limited, a Jersey company (the “Purchase Agreement”), which provides for the
issuance by the Company to the Shareholder of an aggregate of 30,000,000 shares (the “Shares”) of
the Company’s Common Stock as consideration for the purchase of all of the outstanding capital
stock of Target. The execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
“1933 Act” shall mean the Securities Act of 1933, as amended from time to time.
“1934 Act” shall mean the Securities Exchange Act of l934, as amended from time to
time.
“Affiliate” shall mean, with respect to any Person, (i) a director or executive
officer of such Person, (ii) a spouse, parent, sibling or descendant of such Person (or a spouse,
parent, sibling or descendant of any director or executive officer of such Person), and (iii) any
other Person that, directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such Person.
“Agreement” shall have the meaning set forth in the preamble.
“Automatic Registration” shall mean a registration effected pursuant to Section 2.1(a)
hereof.
“Automatic Registration Statement” shall mean a registration statement which covers
8,000,000 Registrable Securities (as adjusted for any stock split, reclassification,
recapitalization or other similar event by the Company) on an appropriate Form under Rule 415 under
the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all material incorporated by
reference therein pursuant to Section 2.1 hereof.
“beneficial owner(ship)” and “beneficially own” shall be determined in
accordance with Rule 13d-3 under the 1934 Act; provided, however, that a Person shall be deemed to
beneficially own any securities that such Person or any of such Person’s Affiliates has the right
to acquire (whether such right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (written or oral), or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or otherwise (it being understood
that such Person shall also be deemed to be the beneficial owner of the securities convertible into
or exchangeable for such securities).
“Black-out Periods” shall mean suspensions of the effectiveness of the Demand
Registration Statement as permitted by Section 3 hereof.
“Block Trade” shall mean the sale of Registrable Securities by the Holder to a single
purchaser (or group of affiliated purchasers) in any given transaction.
“Closing Date” shall mean the Closing Date as defined in the Purchase Agreement.
“Common Stock” shall mean the common stock, par value $0.01 per share, of the Company.
“Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“control” (including the terms “controlled by” and “under common control
with”), with respect to the relationship between or among two or more Persons, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as trustee or executor,
by contract or otherwise.
“Demand” shall have the meaning set forth in Section 2.2(a) hereof.
“Demand Registration” shall mean a registration effected pursuant to Section 2.2(a)
hereof.
“Demand Registration Statement” shall mean a registration statement which covers the
Registrable Securities covered by a Demand on an appropriate form under Rule 415 under the 1933
Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by reference therein pursuant
to Section 2.2 hereof.
“Fair Market Value” shall mean the closing sales price of the Common Stock on the date
of determination.
“Holder” shall mean the Shareholder and its successors and permitted assigns, for so
long as it owns any Registrable Securities (subject to and in accordance with Section 5.4,
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including any direct or indirect transferee of the Shareholder who has acquired Registrable
Shares from the Shareholder).
“indemnified person” shall have the meaning set forth in Section 4(c) hereof.
“indemnifying person” shall have the meaning set forth in Section 4(c) hereof.
“Losses” shall have the meaning set forth in Section 4(a) hereof.
“Notice” shall have the meaning set forth in Section 2.3(a) hereof.
“Person” shall mean an individual, partnership (general or limited), corporation,
limited liability company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
“Prospectus” shall mean the prospectus included in a Registration Statement, including
any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, and by all other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registered Hedge” shall have the meaning set forth in Section 2.2(d) hereof
“Registrable Securities” shall mean the Shares and any Common Stock or other
securities of the Company or any successor entity which may be issued or distributed in respect of
the Registrable Securities by way of stock dividend or stock split or other distribution,
recapitalization, merger, conversion or reclassification; provided, however, the Shares shall cease
to be Registrable Securities when (i) a Registration Statement with respect to such Shares shall
have been declared effective under the 1933 Act and such Shares shall have been disposed of
pursuant to such Registration Statement, (ii) such Shares have been sold to the public pursuant to
Rule l44 (or any similar provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Shares are eligible for sale pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) without any limitation as to volume or (iv) such Shares shall have ceased to be
outstanding.
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company with this Agreement, including without limitation: (i) all SEC filing
fees, (ii) all expenses of the Company in preparing or assisting in preparing and printing any
Registration Statement, any Prospectus, any amendments or supplements thereto, and other documents
relating to the performance of and compliance with this Agreement, (iii) the fees and disbursements
of counsel for the Company and of the independent public accountants of the Company, (iv)
registration and filing fees with the National Association of Securities Dealers, Inc., (v) fees
and expenses of compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the Registrable Securities),
(vi) fees and expenses incurred in connection with the listing or quotation of the Registrable
Securities, and (vii) fees and expenses of any additional experts retained by the
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Company in connection with such registration, but excluding fees, expenses and disbursements
of counsel retained by the Holder and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by the Holder.
“Registration Statement” shall mean an Automatic Registration Statement, a Demand
Registration Statement or a Tag-along Registration Statement.
“SEC” shall mean the United States Securities and Exchange Commission or any successor
agency or government body performing the functions currently performed by the United States
Securities and Exchange Commission.
“Shareholder” shall have the meaning set forth in the preamble.
“Shares” shall have the meaning set forth in the preamble.
“Tag-along Percentage” shall have the meaning set forth in Section 2.3(b) hereof.
“Tag-along Registration” shall mean a registration effected pursuant to Section 2.3
hereof in which Registrable Securities are included.
“Tag-along Registration Statement” shall have the meaning set forth in Section 2.3(a)
hereof.
“Tag-along Securities” shall have the meaning set forth in Section 2.3(b) hereof.
“Take-Down” shall have the meaning set forth in Section 2.1(a) hereof.
“Target” shall have the meaning set forth in the preamble.
2. Registration.
2.1 Automatic Registration. The Company shall, for the benefit of the Holder, at the
Company’s cost:
(a) Use its best efforts to (i) file, as soon as practicable following the Closing Date, with
the SEC an Automatic Registration Statement relating to the offer and sale (including, without
limitation, through a Registered Hedge) of 8,000,000 Registrable Securities by or on behalf of the
Holder from time to time or, in the case of a Registered Hedge, on a continuous basis and (ii) file
amendments thereto or supplements to the Prospectus included therein as reasonably requested by the
Holder as soon as reasonably practicable following such request in order to reflect the plan of
distribution of such Registrable Securities set forth in the Automatic Registration Statement;
provided, however, that the Holder shall have the right to initiate, on only one occasion, an
underwritten offering of securities (a “Take-Down”) pursuant to the Automatic Registration (but may
sell the Registrable Securities registered in the Automatic Registration in connection with the
Registered Hedge but not sold in a Registered Hedge pursuant to such Automatic Registration
Statement in a non-underwritten offering).
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(b) Use its commercially reasonable efforts to keep the Automatic Registration Statement
continuously effective, other than during Black-out Periods, in order to permit the Prospectus
forming part thereof to be usable by Holder for a period of 365 days from the date the Automatic
Registration Statement is declared effective by the SEC.
(c) Notwithstanding any other provisions hereof, use commercially reasonable efforts to ensure
that (i) the Automatic Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any supplement thereto complies in all material respects with the 1933 Act and the
rules and regulations thereunder, (ii) the Automatic Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading and (iii) any Prospectus forming part of the Automatic Registration Statement, and
any supplement to such Prospectus (as amended or supplemented from time to time), does not include
an untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements, in light of the circumstances under which they were made, not misleading.
2.2 Demand Registration.
(a) The Company shall, for the benefit of the Holder, on up to three occasions:
(i) Following a demand (a “Demand”) by the Holder to register all or a portion
of the Registrable Securities, use commercially reasonable efforts to file with the
SEC a Demand Registration Statement relating to the offer and sale (including,
without limitation, through a Registered Hedge) of such Registrable Securities by or
on behalf of the Holder from time to time or, in the case of a Registered Hedge, on
a continuous basis; provided, however, that, in the case of an underwritten
offering, the Company shall not have an obligation to effect a Demand Registration
unless (x) in the case of the first Demand Registration effected under this Section
2.2, such Demand relates to at least 10,000,000 Registrable Securities (as adjusted
for any stock split, reclassification, recapitalization or other similar event by
the Company), and (y) in the case of any subsequent Demand Registration effected
under this Section 2.2, such Demand relates to the greater of (I) 5,000,000
Registrable Securities (as adjusted for any stock split, reclassification,
recapitalization or other similar event by the Company) or (II) Registrable
Securities having a market value (calculated by the last sale price on the date on
which the Demand is made by the Holder) of at least $60,000,000 and provided,
further, that, in the case of a Block Trade, the Company shall not have an
obligation to effect a Demand Registration unless such demand relates to at least
2,000,000 Registrable Securities (as adjusted for any stock split, reclassification,
recapitalization or other similar event by the Company).
(ii) Use its commercially reasonable efforts to keep the Demand Registration
Statement continuously effective, other than during Black-out Periods, in order to
permit the Prospectus forming part thereof to be usable by
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Holder, in the case of an underwritten offering, for a period of 180 days or,
in the case of a Block Trade, for a period of 30 days from the date the Demand
Registration Statement is declared effective by the SEC. Notwithstanding anything to
the contrary, in the case of a Demand Registration with respect to an underwritten
offering, the Holder shall have the right to initiate, on only one occasion, a
Take-Down pursuant to such Demand Registration (but may sell the Registrable
Securities registered in the Demand Registration in connection with the Registered
Hedge but not sold in a Registered Hedge pursuant to such Demand Registration
Statement in a non-underwritten offering).
(iii) Notwithstanding any other provisions hereof, use commercially reasonable
efforts to ensure that (i) any Demand Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the rules and regulations thereunder,
(ii) any Demand Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any Demand
Registration Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
(b) The Holder may not make a Demand (i) prior to the one year anniversary of the Closing
Date, (ii) in the case of an underwritten offering (and in the case of a Block Trade, if requested
by the managing underwriter of an underwritten offering), within 180 days after the date a Demand
Registration Statement relating to a previous Demand for an underwritten offering was declared
effective by the SEC or (iii) with respect to Registrable Securities covered by a then effective
Registration Statement.
(c) A registration will not count as a Demand Registration unless it has become effective,
except if it has been withdrawn at the request of the Holder, in which case, it shall count as a
Demand Registration. In the event that the Holder withdraws a request for a Demand Registration,
the Holder may reacquire such Demand Registration (such that the withdrawal will not count as a
Demand hereunder) if the Holder reimburses the Company for any and all Registration Expenses
actually incurred by the Company in connection with such request for a Demand Registration.
(d) The offering of Registrable Securities pursuant to an Automatic Registration or a Demand
Registration shall be, in the sole discretion of the Holder, in the form of a “firm commitment”
underwritten offering, pursuant to a Block Trade or, in the case of a Registered Hedge, in the
manner set forth in the Automatic Registration Statement or Demand Registration Statement. The
Holder shall have the right to select the managing underwriters to be used in connection with any
underwritten offering under this Section 2.2(d), subject to the approval of the Company, which
approval shall not be unreasonably withheld. As used in this Agreement, the term “underwritten
offering” shall include a transaction in which an
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investment bank or Affiliate thereof sells shares (including, without limitation, short sales)
of Common Stock pursuant to a Registration Statement in order to hedge its economic exposure to a
derivative transaction entered into between the Holder and such investment bank or Affiliate
thereof (a “Registered Hedge”).
2.3 Tag-along Registration.
(a) If, at any time during the period commencing on the one year anniversary of the Closing
Date and for so long as the Holder beneficially owns at least 7.5% of the Common Stock, the Company
proposes to prepare and file a registration statement relating to the sale by the Company of Common
Stock in an underwritten public offering, other than pursuant to Form S-4 or Form S-8 or a
successor form (collectively, a “Tag-along Registration Statement”), it will give written notice of
its intention to do so by registered mail (“Notice”), at least ten (10) business days prior to the
filing of each such Registration Statement, to the Holder.
(b) Upon the written request of the Holder made within ten (10) business days after receipt of
the Notice that the Company include all or a portion of the Registrable Securities held by the
Holder in the proposed Tag-along Registration Statement, the Company shall permit the Holder to
include in the Tag-along Registration as part of the underwritten public offering a number of
Registrable Securities (the “Tag-along Securities”) up to the Tag-along Percentage. The “Tag-along
Percentage” shall mean the percentage of shares of Common Stock to be sold in the underwritten
offering (after inclusion of the Tag-along Securities) equal to the Holder’s beneficial ownership
percentage of the Common Stock on the date of the Notice, subject to reduction in accordance with
the last sentence of this Section 2.3(b). If, in the opinion of the Company’s managing underwriter
for the offering evidenced by such Tag-along Registration Statement, the inclusion of all or a
portion of the Tag-along Securities, when added to the securities being registered, will either (i)
exceed the maximum amount of the Company’s securities which can be marketed at a price reasonably
related to their then-current market value or (ii) otherwise materially adversely affect the entire
offering, then the Company may exclude from such offering all or a portion of the Tag-along
Securities.
(c) If securities are proposed to be offered for sale pursuant to such Tag-along Registration
Statement by other security holders of the Company and the total number of securities to be offered
by the Holder and such other selling security holders is required to be reduced pursuant to a
request from the managing underwriter (which request shall be made only for the reasons and in the
manner set forth above), after inclusion of all of the securities being offered by the Company, the
number of Tag-along Securities to be offered by the Holder pursuant to such Tag-along Registration
Statement shall equal the number which bears the same ratio to the maximum number of securities
that the underwriter believes may be included for all the selling security holders (including the
Holder) as the original number of Tag-along Securities proposed to be sold by the Holder bears to
the total original number of securities proposed to be offered by the Holder and the other selling
security holders. If, as a result of the provisions of this Section 2.3(c), the Holder shall not
be entitled to include all Registrable Securities in a registration that the Holder has requested
to be so included, the Holder may withdraw its request to include Registrable Securities in such
Tag-along Registration Statement prior to its effectiveness.
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(d) Notwithstanding the provisions of this Section 2.3, the Company shall have the right at
any time after it shall have given written notice pursuant to this Section 2.3 (irrespective of
whether any written request for inclusion of Tag-along Securities shall have already been made) to
elect not to file any such proposed Tag-along Registration Statement or to withdraw the same after
its filing but prior to the effective date thereof.
(e) The Holder shall, as a condition to the inclusion of any Tag-along Securities in a
Tag-along Registration Statement, execute and deliver an underwriting agreement in form and
substance satisfactory to the managing underwriter of the underwritten offering, as well as such
other agreements, certificates or documents reasonably requested to be executed and delivered by
the Company, its legal counsel or the managing underwriter in connection with such offering;
provided, however, that the Holder shall not be required to make any representations or warranties
in connection with any Tag-along Registration other than representations and warranties as to (i)
the Holder’s ownership of its Registrable Securities to be sold or transferred free and clear of
all liens, claims and encumbrances, (ii) the Holder’s power and authority to effect such transfer
and (iii) such matters pertaining to compliance with securities laws as may be reasonably
requested; provided, further, that the obligation of the Holder to indemnify pursuant to any such
underwriting agreements shall be several, not joint and several, and the liability of the Holder
will be in proportion to, and limited to, the net amount received by the Holder from the sale of
the Holder’s Registrable Securities pursuant to such Tag-along Registration.
2.4 Expenses.
(a) The Company shall pay all Registration Expenses in connection with (i) the Automatic
Registration pursuant to Section 2.1 hereof, (ii) one Demand Registration pursuant to Section 2.2
hereof, and (iii) any registrations pursuant to Section 2.3 hereof; provided, however, the Company
shall not be required to pay Registration Expenses pursuant to the foregoing clauses (i) or (ii) in
excess of an aggregate of $300,000 and may require the Holder to advance or reimburse it for any
additional expenses incurred in connection with such registration prior to proceeding with the
registration.
(b) The Holder shall pay (i) the fees, expenses and disbursements of counsel and other experts
retained by it, (ii) any and all actual out-of-pocket expenses of the Company incident to the
performance of or compliance by the Company in excess of the expenses payable by the Company set
forth in Section 2.4(a) hereof, (iii) all actual out-of-pocket expenses in connection with any
Demand Registrations, including Registration Expenses and other expenses of the Company in
connection with any Demand Registrations under Section 2.2 hereof, following the first Demand
Registration, (iv) in the case of a firm commitment underwritten offering, any and all fees and
expenses of the underwriters for the offering not paid by the underwriters, and (v) all
underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities pursuant to a Registration Statement.
2.5 Additional Securities. Notwithstanding anything in this Agreement to the
contrary, except as provided in Section 2.3 hereof, the Company shall be permitted to include any
other debt or equity securities on its own behalf and on behalf of other
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selling security holders in any Registration Statement filed pursuant to this Agreement;
provided, however, in connection with a Registration Statement relating to a firm commitment
underwritten offering, if, in the opinion of the managing underwriter for such offering, the
inclusion of all or any other securities to be sold by the Company or other selling securityholders
would either (i) reduce the maximum amount of the Shareholder’s securities which could be marketed
at a price reasonably related to their then-current market value or (ii) otherwise materially
adversely affect the entire offering, then all or a portion of such securities requested to be
marketed by the Company or other selling securityholders shall be excluded from such offering.
3. Registration Procedures. In connection with the obligations of the Company with
respect to a Registration Statement pursuant to Section 2.1 or 2.2, the Company shall:
(a) Use its best efforts to prepare and file as promptly as practicable with the SEC a
Registration Statement on the appropriate form under the 1933 Act, which form (i) shall be selected
by the Company, (ii) shall be available for the sale of the Registrable Securities covered by such
Registration Statement by the Holder, (iii) shall comply as to form in all material respects with
the requirements of the applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith or incorporated by reference therein, and (iv)
in the case of a Demand Registration, use commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective in accordance with Section 2
hereof;
(b) in the case of a Demand Registration, use commercially reasonable efforts to prepare and
file with the SEC such amendments and post-effective amendments to the Registration Statement as
may be necessary under applicable law to keep such Registration Statement effective for the
applicable period; and use commercially reasonable efforts to cause each Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the 1933 Act and comply with the provisions
of the 1933 Act, the 1934 Act and the rules and regulations thereunder applicable to them with
respect to the disposition of all securities covered by the Registration Statement during the
applicable period set forth in Section 2;
(c) (i) furnish or make available to the Holder, without charge, as many copies of each
Prospectus, and any amendment or supplement thereto and such other documents as the Holder may
reasonably request, including financial statements and schedules and, if the Holder so requests,
all exhibits in order to facilitate the public sale or other disposition of the Registrable
Securities; and (ii) hereby consent to the use of the Prospectus or any amendment or supplement
thereto by the Holder in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(d) use commercially reasonable efforts to register or qualify the Registrable Securities
under all applicable state securities or “blue sky” laws of such jurisdictions as the Holder may
reasonably request, and do any and all other acts and things which may be reasonably necessary or
advisable to enable the Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by the Holder;
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provided, however, that the Company shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any action which would subject it to
general service of process or taxation in any such jurisdiction where it is not then so subject;
(e) notify promptly the Holder and, if requested by the Holder, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the SEC or any state
securities authority for post-effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the happening of any event or the discovery of any facts during the period a Registration
Statement is effective which makes any statement of a material fact made in such Registration
Statement or the related Prospectus untrue in any material respect or which requires the making of
any changes in such Registration Statement or Prospectus in order to make the statements therein
not misleading, (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (vi) of any determination by the
Company that a post-effective amendment to such Registration Statement would be appropriate;
(f) use commercially reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment;
(g) upon the occurrence of any event or the discovery of any facts, each as contemplated by
Section 3(e)(ii), (iii), (iv), (v) or (vi) hereof, as promptly as practicable after the occurrence
of such an event, use commercially reasonable efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus (x) will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading or
(y) will remain so qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to correct any misstatement
of a material fact or to include any omitted material fact, the Company agrees promptly to notify
the Holder of such determination and to furnish or make available to the Holder such number of
copies of the Prospectus as amended or supplemented, as the Holder may reasonably request;
(h) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a Prospectus or any document
which is to be incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to the Holder, which
documents will be subject to the reasonable
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review of the Holder and the Company will not file any Automatic Registration Statement or
Demand Registration Statement to which the Holder shall reasonably object;
(i) use commercially reasonable efforts to cause all Registrable Securities to be listed or
quoted on any securities exchange or inter-dealer quotation system on which similar securities
issued by the Company are then listed or quoted if requested by the Holder, if any;
(j) otherwise comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings statement covering at least
12 months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;
(k) in connection with an Automatic Registration under Section 2.2 hereof or a Demand
Registration under Section 2.3 hereof that is conducted as an underwritten offering:
(i) enter into customary agreements (including an underwriting agreement in
customary form, including customary representations, warranties, covenants,
conditions and indemnities) and take such other actions as are required or
reasonably requested by the Holder or the managing underwriters in order to expedite
or facilitate the sale of such Registrable Securities; provided, however, that the
Company’s participation in a “road show” or other marketing efforts shall be limited
to one “overnight road show” for each underwritten offering and shall not exceed a
twenty-four (24) hour period or otherwise be disruptive to the Company’s business,
except in the case of a Demand Registration that covers at least 20,000,000
Registrable Securities, in which case the Company’s participation in a “road show”
or other marketing efforts shall be extended to cover a seventy-two (72) hour period
and, if reasonably requested by the managing underwriter shall be further extended
for an additional forty-eight (48) hour period;
(ii) at the request of the managing underwriters in connection with an
underwritten offering, furnish to the underwriters (i) an opinion of counsel,
addressed to the underwriters, covering such customary matters as the managing
underwriters may reasonably request and (ii) a comfort letter or comfort letters
(and updates thereof) from the Company’s independent public accountants covering
such customary matters as the managing underwriters may reasonably request; and
(iii) if requested by the managing underwriters or the Holder, promptly
incorporate in a prospectus supplement or post effective amendment such information
as the managing underwriters or the Holder reasonably requests to be included
therein, including, without limitation, with respect to the Registrable Securities
being sold by the Holder, the purchase price being paid therefor by the underwriters
and with respect to any other items of the underwritten offering of the Registrable
Securities to be sold in such offering, and
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promptly make all require filings of such prospectus supplement or post
effective amendment;
(l) promptly make available for inspection by the Holder participating in any disposition
pursuant to any Registration Statement, the managing underwriters, and any attorney, accountant or
other agent or representative retained by the Holder or the managing underwriters, all financial
and other records, pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence responsibility, and cause the
Company’s officers, directors and employees to supply all information reasonably requested by the
Holder or the managing underwriters in connection with such Registration Statement; provided that
the Holder and each of the managing underwriters shall enter into a confidentiality agreement in a
form reasonably acceptable to the Company and the Company shall have no obligation to publicly
disclose any material non-public information supplied to the Holder or the managing underwriters
pursuant to the confidentiality agreement;
(m) to the extent required, provide a CUSIP number, registrar and transfer agent for the
Registrable Securities included in any Registration Statement not later than the effective date of
such registration statement and shall timely deliver certificates for the Registrable Securities
(not bearing any restrictive legends) to the transfer agent;
(n) cooperate with the Holder and each managing underwriter participating in the disposition
of such Registrable Securities and their respective counsel in connection with any filings required
to be made with the national Association of Securities Dealers, Inc.; and
(o) during the period when the Prospectus is required to be delivered under the 1933 Act,
promptly file all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act.
The Company may (as a condition to the preparation of, or otherwise proceeding with, a Demand
Registration or Tag-along Registration) require the Holder to furnish to the Company such
information regarding the Holder and the proposed distribution by the Holder as the Company (and
the managing underwriter in the case of a Tag-along Registration) may from time to time reasonably
request in writing. Notwithstanding anything herein to the contrary, the Holder may not include
any of its Registrable Securities in any Registration Statement pursuant to this Agreement unless
it (i) furnishes to the Company any such information reasonably requested by the Company, (ii)
agrees to promptly furnish additional information required to be disclosed in order to make the
information previously furnished to the Company by the Holder not materially misleading and (iii)
in the case of a Tag-along Registration, agrees to execute and deliver the agreements, documents
and certificates required under and in accordance with Section 2.3(e) hereof.
The Holder agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section 3(e)(iii), (iv), (v) and
(vi) hereof, the Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until the Holder’s receipt of the
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copies of the supplemented or amended Prospectus contemplated by Section 3(g) hereof, and, if
so directed by the Company, the Holder will deliver to the Company (at its expense) all copies in
the Holder’s possession, other than permanent file copies then in the Holder’s possession, of the
Prospectus covering Registrable Securities current at the time of receipt of such notice. In
addition, if the Company shall furnish to the Holder a certificate signed by the Company’s Chairman
or Chief Executive Officer stating that the Company’s Board of Directors has determined in good
faith the disclosure of information in any Registration Statement or related Prospectus would
materially interfere with any acquisition, divestiture, financing or other material event or
transaction which is then intended or the public disclosure of which at the time would be
materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a
Registration Statement or suspend the use of a Prospectus for a period of not more than ninety (90)
days; provided, however, that the Company shall not exercise its right to postpone or suspend any
registration pursuant to this sentence for more than one hundred and twenty (120) days in the
aggregate during any period of three hundred sixty (360) consecutive days. If the Company shall
give any such notice to postpone, suspend or discontinue the disposition of Registrable Securities
pursuant to the Registration Statement as set forth in this paragraph, the Company shall extend the
period during which a Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of giving such notice
to and including the date when the Holder shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions. Any such suspension shall be referred to as a
“Black-out Period.” The Company shall not be entitled to initiate a Black-out Period unless it
shall, in accordance with its policies then in effect, forbid purchases and sales in the open
market by its senior executives.
4. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Holder and its directors, officers
and employees, each person, if any, who controls any Holder within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, and each Affiliate of any Holder within the meaning
of Rule 405 under the 1933 Act from and against any and all losses, claims, damages, liabilities,
judgments and expenses (including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or claim) (collectively,
“Losses”) caused by, arising out of, or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the Company shall not be liable to indemnify the
Holder insofar as such Losses are (i) caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Holder furnished to the Company
in writing by the Holder expressly for use therein (which was not subsequently corrected in writing
prior to the sale of Registrable Securities to the person asserting the Loss in sufficient time to
permit the Company to amend or supplement the Registration Statement or such Prospectus
appropriately), (ii) based upon the Holder’s failure to provide the Company with a material fact
relating to the Holder which is required to be included in the Registration Statement or necessary
to make a statement in the Registration Statement not be misleading, or (iii) arising out of or
based upon sales of
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Registrable Securities by the Holder to the person asserting any such Losses, if such person
was not sent or given a Prospectus by or on behalf of the Holder, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the Registrable Securities
to such person, and if the Prospectus (as so amended or supplemented) had been provided to the
Holder and would have cured the defect giving rise to such Losses.
(b) The Holder agrees severally and not jointly to indemnify and hold harmless the Company and
its directors, officers and each person, if any, who controls the Company (within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 0000 Xxx) and any of their Affiliates, to
the same extent as the foregoing indemnity from the Company to the Holder, but only (i) with
reference to information relating to the Holder furnished to the Company in writing by or on behalf
of the Holder expressly for use in such Registration Statement or Prospectus or amendment or
supplement thereto (which was not subsequently corrected in writing prior to the sale of
Registrable Securities to the Person asserting the Loss in sufficient time to permit the Company to
amend or supplement the Registration Statement or such Prospectus appropriately, (ii) with
reference to information relating to the Holder which the Holder fails to provide in writing for
use in the Registration Statement or Prospectus resulting in an omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, or in
connection with a sale of Registrable Securities or (iii) arising out of or based upon sales of
Registrable Securities by the Holder to the person asserting any such Losses if such person was not
sent or given a Prospectus by or on behalf of the Holder, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Registrable Securities to
such person, and if the Prospectus (as so amended or supplemented) had been provided to the Holder
and would have cured the defect giving rise to such Losses. Notwithstanding the foregoing, the
Holder shall have no obligation to indemnify under this Section 4 to the extent that any such
Losses have been finally and non-appealably determined by a court of competent jurisdiction to have
resulted from the Company’s willful misconduct or gross negligence.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 4(a) or 4(b)
hereof, such person (the “indemnified party”) shall promptly notify the person against whom
such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying
party shall assume the defense of such proceedings and retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate under applicable ethical legal standards due to
actual or potential differing interests between them based upon the indemnified party’s reasonable
judgment upon advice of counsel to the indemnified party or (iii) the indemnifying person fails to
assume the defense of such proceeding within twenty (20) business days after receipt of written
notice thereof from the indemnified person. It is understood that the indemnifying party shall
not, in respect of the legal
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expenses of any indemnified party in connection with any proceeding or related proceedings, be
liable for the fees and expenses of more than one separate firm (plus one local counsel in each
jurisdiction) for all such indemnified parties. Such firm shall be reasonably acceptable to the
indemnifying person and shall be designated in writing by, in the case of parties indemnified
pursuant to Section 4(a) the Holder and, in the case of parties indemnified pursuant to 4(b), the
Company. The indemnifying party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against
any Loss by reason of such settlement or judgment that is indemnifiable pursuant to Section 4(a) or
4(b), as the case may be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter of such proceeding
and does not require the indemnified person to admit culpability or fault.
(d) To the extent that the indemnification provided for in Section 4(a) or 4(b) is unavailable
to an indemnified party or insufficient in respect of any Losses referred to therein, then each
indemnifying party under such section, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a result of such Losses
in such proportion as is appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such Losses, as well as any other relevant
equitable considerations. The relative fault of the Holder on the one hand and the Company on the
other hand shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Holder or by the Company or the failure of such party to
provide information, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 4(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the Losses referred
to in the immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 4 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to an indemnified party at law or in equity,
hereunder, under the Purchase Agreement or otherwise.
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(f) The indemnity and contribution provisions contained in this Section 4 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Holder or its directors, officers or employees, any
person controlling the Holder or any Affiliate of the Holder or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii) the sale of any Registrable
Securities by the Holder.
(g) Notwithstanding the provisions of this Section 4, the Holder shall not be required to
indemnify or contribute any amount in excess of the amount of the net proceeds of the offering
received by the Holder.
For purposes of this Section 4, each Person, if any, who controls the Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Holder or its directors, officers or employees, and each director of the
Company, and each Person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
5. Miscellaneous.
5.1 Rule 144. For so long as the Company is subject to the reporting requirements of
Section 13 or 15 of the 1934 Act, the Company covenants that it will file the reports required to
be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder and that it will take such further action as the Holder
may reasonably request to the extent required from time to time to enable the Holder to sell
Registrable Securities without registration under the 1933 Act within the limitations of the
exemptions provided by Rule 144 under the 1933 Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC. Upon the reasonable request of the
Holder, the Company will deliver to the Holder a written statement as to whether it has complied
with such reporting requirements.
5.2 Amendments and Waivers. This Agreement may not be amended, modified or
supplemented without the written consent of the Company and the Holder, and waivers or consents to
departures from the provisions hereof may only be given in writing by the party granting such
waiver, consent or departure.
5.3 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing and duly given when delivered by hand or mailed by express, registered or
certified mail, or any courier guaranteeing overnight delivery (a) if to the Holder, at the most
current address given by the Holder to the Company by means of a notice given in accordance with
the provisions of this Section 5.3, which address initially is the address set forth in the
Purchase Agreement with respect to the Holder, with a copy to Xxxxxx & Xxxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention, Xxxxxxx X. Xxxxxx, Esq.; and (b) if to the Company, to
the attention of its General Counsel, initially at the Company’s address set forth in the Purchase
Agreement, and thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.3, with a copy to Blank
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Xxxx XXX, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention, Xxxxxx X. Xxxxxxx, Esq.
5.4 Assignment; Benefits. The Holder may assign all or any part of its rights under
this Agreement to (i) any partner of or member in the Shareholder in connection with a distribution
to such partner or member of Registrable Securities regardless of the number of Registrable
Securities so distributed or (ii) any Affiliate of the Shareholder. In the event that the Holder
shall assign its rights pursuant to this Agreement in connection with the transfer of less than all
its Registrable Securities, the Holder shall also retain its rights with respect to its remaining
Registrable Securities. Notwithstanding the foregoing, in the event of any such assignment, no
Demand may be made hereunder without the approval of Holders of more than 50% of the Registrable
Securities.
5.5 Entire Agreement. This Agreement (including any schedules or exhibits hereto),
together with the Purchase Agreement and the Shareholder Agreement (as defined in the Purchase
Agreement) constitutes the full and entire understanding and agreement among the parties with
respect to the subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, that may have related to
the subject matter hereof in any way.
5.6 Governing Law. This Agreement shall be governed by and interpreted and enforced
in accordance with the laws of the State of New York, without giving effect to any choice of law or
conflict of laws rules or provisions (whether of the State of New York or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the State of New York.
5.7 Submission to Jurisdiction; Waiver of Jury Trial. No proceeding related to this
Agreement or the transactions contemplated hereby may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and County of New York or
in the United States District Court for the Southern District of New York, which courts shall have
jurisdiction over the adjudication of such matters, and each of the Company and the Holder hereby
irrevocably and unconditionally consent to the jurisdiction of such courts and personal service
with respect thereto, waive any objection to the laying of venue of any such litigation in such
courts and agree not to plead or claim that such litigation brought in any courts has been brought
in an inconvenient forum. Each of the Company and the Holder hereby waive all right to trial by
jury in any proceeding (whether based upon contract, tort or otherwise) in any way arising out of
or relating to this Agreement. The Holder irrevocably agrees to designate a service company
located in the United States as its agent for service of process and consents to service of process
by first class certified mail, return receipt requested, postage prepaid, to the address at which
such party is located.
5.8 Severability. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby provided that the essential terms and conditions of this
Agreement for the parties remain valid, binding and enforceable; provided, further, that the
economic and legal substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. In event of any such
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determination, the parties agree to negotiate in good faith to modify this Agreement to
fulfill as closely as possible the original intents and purposes hereof. To the extent permitted
by law, the parties hereby to the same extent waive any provision of law that renders any provision
hereof prohibited or unenforceable in any respect.
5.9 Counterparts. This Agreement and any amendments, modifications and supplements
hereto may be executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one and the same
agreement.
5.10 Specific Performance. Each party hereto acknowledges and agrees that the other
party would be damaged irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached. Accordingly, each
party hereto agrees that any other party shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the United States or any
state thereof having jurisdiction over the parties and the matter in addition to any other remedy
to which it may be entitled, at law or in equity.
5.11 Third Party Beneficiaries. The indemnified persons pursuant to Section 4 are
intended to be third party beneficiaries of this Agreement, and this Agreement shall inure to the
benefit of, and be enforceable by, such indemnified persons.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| BRIGHTPOINT, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Executive Vice President, General Counsel and Secretary |
|||
| DANGAARD HOLDING A/S |
||||
| By: | /s/ Xxxxxxxxx Xxxxx | |||
| /s/ Xxxxxxx Xxxxxxx | ||||
| Names: Xxxxxxxxx Xxxxx and Xxxxxxx Xxxxxxx Titles: Directors |
||||
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