Exhibit 4.28
SUPPLEMENTAL AGREEMENT
STEPMIND
AMONG THE UNDERSIGNED:
- MR. XXXXX XXXXXXX,
a French national, born on July 4, 1962, in Quimper, France, residing
at 00 xxx Xxxxx Xxxxxx, 00000 Issy les Moulineaux, France,
- XX. XXXXX XXXXXXX,
a French national, born on April 14, 1949, in Plogastel Saint-Germain,
France, residing at 0 xxx xx Xxxxxxx Xxxxxxx, 00000 Xxxxxx, Xxxxxx,
(hereinafter collectively referred to as the "FOUNDERS")
- REMOTE REWARD SAS,
a French societe par actions simplifiee with a share capital of EUR
90,481,410, with its registered office at 4 ter xxx xx x'Xxxxx, 00000
Xxxxxxxx, registered in the Commercial Registry under the number
433458304 RCS Nanterre, represented by Mr. Xxxxx Xxxxxxx, in his
capacity as President,
(hereinafter "REMOTE REWARD"),
AND
- AGF INNOVATION 3, AGF INNOVATION 4, AGF INNOVATION 5, fonds communs de
placement dans l'innovation,
each represented by its managing company, AGF PRIVATE EQUITY, a French
societe par actions a directoire et conseil de surveillance with a
share capital of Euros 1,000,000, with its registered office at 00, xxx
Xxxxxx, XX 000, 00000 Xxxxx Cedex 09, registered in the Commercial
Registry under the number 414 735 175 RCS Paris, duly empowered to so
represent each such entity, itself represented by Xx. Xxxxxxxxx
Lautour, duly empowered for the purpose hereof,
(hereinafter "AGF PE"),
- MIGHTY WEALTH GROUP LIMITED,
an international business company incorporated in the British Virgin
Islands, with a share capital of USD 50,000, with its registered office
at Palm Grove House, P.O. Box 438, Road Town, Tortola, BVI, registered
under the number 565041, represented by Xx. Xxxx Xxxxxx, in his
capacity as Director,
(hereinafter "MWGL"),
- NAM TAI ELECTRONICS INC.
a company incorporated in the British Virgin Islands, under
registration number 3805, with its registered office at McW. Xxxxxx &
Co., XxXxxxxx Xxxxxxxx, P.O. Box 3342, Road Town, Tortola, British
Virgin Islands, represented by Xx. XXX Xxxx Xxxx, in his capacity as
director and chief financial officer,
(hereinafter "NAM TAI"),
(AGF PE, MWGL and Nam Tai are hereinafter collectively referred to as
the "INVESTORS" and individually as an "INVESTOR"),
(The Founders, Remote Reward and the Investors being hereinafter collectively
referred to as the "PARTIES" and individually as a "PARTY").
RECITALS:
1. STEPMIND is a French societe anonyme, with a registered capital of
Euros 34,709,907.90, having its registered office at 4 ter, xxx xx
x'Xxxxx, 00000 Xxxxxxxx, registered with the Registry of Commerce and
Companies under number 432 237 949 RCS Nanterre (hereinafter the
"COMPANY"). The Company was incorporated on June 19, 2000.
2. The Parties entered into an Investment Agreement, a Shareholders'
Agreement and a Representations and Warranties Agreement, all of which
were executed on November 28, December 9 and December 10, 2003 (the
"AGREEMENTs"). In view of certain commercial and technical developments
of the Company as of the date hereof, the parties wish to modify the
terms of the Investment contemplated by the Agreements.
Now, therefore, the parties hereto agree as follows:
1. Definitions.
Capitalized terms used but not defined herein shall have the meaning
ascribed thereto in the Agreements.
2. Binding Effect of this Agreement.
In the interest of time, the Parties have set forth herein certain
modifications to the Agreements which are fully binding on the Parties.
It is the intention of the Parties to more formally set forth such
modifications in amendments to the Agreements; provided, however, that
pending the implementation of such amendments, the terms hereof shall
be and shall remain binding on the Parties and shall prevail over any
terms inconsistent therewith set forth in the Agreements.
3. Tranche 1.
The Parties agree that there shall be no modifications to the First
Capital Increase, except for the modifications to the terms of the
Warrants described in paragraph 6 below.
4. Shareholder Loan.
Remote Reward commits to loan to the Company on first demand of the
Company, pursuant to a decision of the Board of Directors of the
Company, at any time between May 1, 2004 and July 31, 2004, an amount
not to exceed Euros 5 million. Such Shareholder Loan shall bear
interest at an annual rate of EURIBOR plus 1% and shall be reimbursable
by the Company pursuant to a decision of the Board of Directors of the
Company at any time on or before December 31, 2005. Such Shareholder
Loan shall be reimbursable, at the option of the Board of Directors of
the Company, in cash or, if the Company shall not have repaid such
Shareholder Loan on or before April 30, 2006, Remote Reward may require
reimbursement of such Shareholder Loan in ordinary shares of the
Company, based on a valuation of the Company as agreed by the Parties,
or, failing such agreement on or before May 15, 2006, pursuant to the
expert evaluation procedure set forth in Section 8.1 of the
Shareholders Agreement. The provisions of paragraphs 5 - 7 of Section
8.1 of the Shareholders Agreement shall otherwise be applicable to such
Shareholder Loan.
5. Second Capital Increase.
Article 8 of the Investment Agreement shall be modified to provide that
the Investors shall subscribe for the ABSA Shares 2 only if, as of July
30, 2004, the WLAN solution meets all of the following technical
criteria:
(i) the Balsa 1 chip area is less than 30 mm2,
(ii) the tape-out procedure for the Balsa 1 chip has been
commenced,
(iii) the Xxxxx W2 chipset substantially meets the specifications
therefore set forth in the updated reference data sheet
released by the Company during the second quarter of 2004,
(iv) performance of the physical layer (modem) is compliant with
IEEE 802.a/b/g standards,
(v) the Salsa "alpha" critical CISF reaction times are achieved,
(vi) the Salsa "alpha" RAM code plus data total footprint is not
more than 256 Kilo Octets, and
(vii) the Salsa 1 chip is compliant with the full set of security
features implemented on a large majority of access points that
can be found in the market.
In the event such technical conditions are satisfied, then the number
of the ABSA Shares 2 shall be such that, for an aggregate investment of
Euros 15 million, the total
number of ABSA Shares 1 and ABSA Shares 2 represent, on a Fully Diluted
Basis, 40% of the share capital of the Company.
In the event such technical conditions are not satisfied, then the
Investors shall be entitled to exercise the Warrants 2004 and Remote
Reward and Xxxxx Xxxxxxx undertake in addition to transfer to the
Investors, on or before September 1, 2004, for an aggregate price of
Euro 1.00, such number of Shares such that, for an aggregate investment
of Euros 7.5 million, the total number of ABSA Shares 1, ABSA Shares 3
and such shares transferred by Remote Reward and Xxxxx Xxxxxxx
represent, on a Fully Diluted Basis, 40% of the share capital of the
Company. Notwithstanding the foregoing, it is the intention of the
Parties that the Shares so transferred have the same rights as Class B
Shares, and Remote Reward and Xxxxx Xxxxxxx therefore agree, in the
event of a liquidation of the Company or issuance of new Shares at
conditions permitting exercise of the Warrants, to take all actions
(including transfers of additional Shares or portion of liquidation
proceeds) to permit the Investors to be in the same position as if the
Shares transferred pursuant to this paragraph were Class B Shares.
6. Warrants.
The Parties shall take all corporate actions to modify the exercise
conditions of the Warrants in order to reflect the modification of the
definition of the "P" resulting from the modification of the average
subscription price of the Investment as a consequence of the previous
paragraph.
7. Additional Capital Increase.
The Board of Directors of the Company shall meet to decide whether an
additional capital increase in an amount up to Euros 5 million shall be
implemented on or before October 1, 2004. Such capital increase shall
occur only if the ABSA 2 Shares are subscribed for. The Founders commit
to subscribe for 60% of such capital increase and the Investors commit
to subscribe for 40% of such capital increase (provided, that, in the
event any Investor other than Nam Tai does not wish to subscribe to
such capital increase, Nam Tai shall subscribe for such Investor's pro
rata portion of such capital increase). The price of such capital
increase shall be equal to the weighted average subscription price of
the ABSA Shares 1 and ABSA Shares 2. The shares issued pursuant to such
capital increase shall be ABSA Shares, each consisting of one Class B
Share and one Warrant.
8. Other Modifications.
The Parties shall take all actions to implement the foregoing
modifications to the terms of the Investment and to duly amend the
Agreements and the Annexes thereto, including, without limitation, (i)
modification of the instruction letter to HSBC Private Bank, dated
December 11, 2003, to extend the date before which the Second Capital
Increase must be completed and otherwise to adjust such instructions to
reflect the foregoing; (ii) contractual provisions to provide the
Investors with a liquidation preference as if the liquidation
preference for the Class B Shares set forth in Section 2.5 of the
Investment Agreement were modified to reflect the modification in the
share subscription prices provided above, (iii) modification of Section
4.1 of the Shareholders Agreement to permit the transfers by Remote
Reward and Xxxxx Xxxxxxx to the Investors provided herein, (iv)
modification of Article 6 of the Shareholders Agreement to reflect a
Valuation of the Company of Euros 25 million (instead of Euros
29,966,670 million), in the event the ABSA Shares 2 are subscribed for,
or Euros 12.5 million (instead of Euros 14,983,335) in the event the
ABSA Shares 2 are not subscribed for, (v) modification of Section 4.6
of the Shareholders Agreement to provide that the drag-along right is
triggered in respect of a sale approved by 70% of the shareholders
(instead of 75%).
9. Miscellaneous.
The provisions of the Investment Agreement set forth in Articles 13 -
21 of the Investment Agreement shall apply mutatis mutandis to this
Agreement as if set forth herein.
IN WITNESS WHEREOF,
Executed in eight (8) original counterparts, in Boulogne, France, this 2nd day
of January, 2004
/s/ Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
------------------------------ ------------------------------
Xxxxx Xxxxxxx Xxxxx Xxxxxxx
Date: November 28, 2003 Date: November 28, 2003
Place: Paris Place: Paris
REMOTE REWARD AGF INNOVATION 3
By: /s/ Xxxxx Xxxxxxx By: AGF Private Equity
---------------------------
Name: Xxxxx Xxxxxxx By: /s/ Guillaume Lautour
Date: November 28, 2003 ---------------------------
Place: Paris Name: Guillaume Lautour
Date: November 28, 2003
Place: Paris
AGF INNOVATION 4
By: AGF Private Equity AGF INNOVATION 5
By: /s/ Guillaume Lautour By: AGF Private Equity
---------------------------
Name: Guillaume Lautour By: /s/ Guillaume Lautour
Date: November 28, 2003 ---------------------------
Place: Paris Name: Guillaume Lautour
Date: November 28, 2003
Place: Paris
Mighty Wealth Group Limited
By: /s/ Xxxxxx Xxx Xxxx Xxx Tai Electronics, Inc.
---------------------------
Name: Xxxxxx Xxx Tung By: /s/ Xxxxxx Xx
Date: December 10, 2003 ---------------------------
Place: Hong-Kong Name: Xxxxxx Xx
Date: December 9, 2003
Place: Hong-Kong
STEPMIND S.A.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Date: November 28, 2003
Place: Paris
