STOCK REPURCHASE AGREEMENT
EXHIBIT A
EXECUTION COPY
THIS STOCK REPURCHASE AGREEMENT (this “Agreement”) is made as of July 1, 2008, between TESSCO
Technologies Incorporated, a Delaware corporation (the “Buyer”), and Brightpoint, Inc., an Indiana
corporation (the “Seller”).
(a) Upon the terms and subject to the conditions of this Agreement, on the Closing Date the
Seller shall sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall purchase
from the Seller, the Shares, free and clear of all Encumbrances.
(b) For purposes of this Agreement, “Encumbrances” shall mean all liens, claims, charges,
assessments, options, security interests, proxies, agreements to vote and other legal and equitable
encumbrances.
1.2 Consideration. In consideration for the Shares, the Buyer will pay to the Seller
$6,410,800.
2.1 Closing Date. The purchase and sale of the Shares (the “Closing”) shall take
place on July 1, 2008 at the offices of the Buyer at 00000 XxXxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx
00000-0000 or at such other location or locations as the Buyer and the Seller may agree. The time
and date on which the Closing is actually held is referred to herein as the “Closing Date.”
2.2 Delivery of Shares and Consideration. At the Closing, the Seller agrees that it
shall take all necessary actions and make all necessary arrangements to transfer the Shares to the
Company directly, or to or through a designated agent of the Company, so that the transfer of the
Shares to the Company is properly reflected on the books and records of the Company. At the
Closing, the Buyer shall pay to the Seller the cash amount set forth in Section 1.2, by
wire transfer of immediately available funds to an account designated by Seller.
(a) Authority of Seller. The Seller has the requisite corporate power and authority
to execute, deliver and perform this Agreement. This Agreement has been duly authorized, executed
and delivered by Seller and is the legal, valid and binding obligation of the Seller enforceable in
accordance with its terms.
(b) No Conflict. Neither the execution and delivery of this Agreement or the
consummation of any of the transactions contemplated hereby nor compliance with or fulfillment of
the terms, conditions and provisions hereof will conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation or a loss of rights under, or result in the
creation or imposition of any Encumbrance upon any of the Shares, under (A) the restated articles
of incorporation or amended and restated bylaws of the Seller, (B) any material note, instrument,
agreement, mortgage, lease, license, franchise, permit or other authorization, right, restriction
or obligation to which the Seller is a party or the Shares are subject or by which the Seller is
bound, (C) any court order to which the Seller is a party or any of the Shares are subject or by
which the Seller is bound, or (D) any requirements of laws, rules or regulations affecting the
Seller or the Shares or otherwise applicable to the transactions contemplated by this Agreement.
(c) Title to Shares. The Seller represents and warrants to the Buyer that the Seller
is the sole record and beneficial owner of the Shares, free and clear of all Encumbrances, and that
the delivery and/or release, as applicable, of the Shares to the Buyer pursuant to this Agreement
will transfer and convey good and valid title thereto to the Buyer, free and clear of all
Encumbrances. The Seller represents and warrants to the Buyer that the Shares constitute all of
the equity interests of the Buyer owned by the Seller.
(d) Economic Risk; Sophistication. (i) The Seller represents and warrants that it has
such knowledge and experience in financial and business matters that it is capable of evaluating
the merits and risks of the proposed sale of the Shares to the Buyer and that it has made an
independent decision to sell the Shares to Buyer based on the Seller’s knowledge about the Buyer
and its business and other information available to the Seller, which it has determined is adequate
for that purpose. The Seller represents and warrants that it (A) has not received or relied upon
any information (in any form, whether written or oral) furnished by Buyer or on behalf of the Buyer
in making that decision, or (B) requested any such information from the Buyer which the Buyer has
not furnished to the Seller.
(ii) The Seller represents, warrants, acknowledges and agrees that the Buyer and
its affiliates, officers and directors, may possess material non-public information
not known to the Seller regarding or relating to the Buyer, including, but not
limited to, information concerning the business, financial condition, results of
operations, prospects or restructuring plans of the Buyer, and the Seller represents,
warrants, acknowledges and agrees that the Seller has not received or requested any
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such information, including any information with respect to Buyer’s fiscal
quarter ended June 29, 2008, and agrees that neither the Buyer nor its affiliates,
officers or directors shall have any liability whatsoever with respect to the
nondisclosure of any such material non-public information, whether before or after
the date of this Agreement.
(e) Value of the Shares. The Seller acknowledges and confirms that it is aware that
the closing sale price of the Common Stock (the “Stock Price”) has fluctuated since the Seller
purchased the Shares and is likely to continue to fluctuate after the date of this Agreement,
including possible material increases to such Stock Price. The Seller further acknowledges and
confirms that it is aware that future changes and developments in (A) the Buyer’s business and
financial condition and operating results, (B) the industries in which the Buyer competes and (C)
overall market and economic conditions, may have a favorable impact on the value of the Common
Stock after the sale by the Seller of the Shares to the Buyer pursuant to terms of this Agreement.
(f) The Seller represents and warrants that it is not relying on any representation or
warranty by the Buyer in connection with the transactions contemplated by this Agreement except as
expressly set forth in this Agreement.
(a) Authority of Buyer. The Buyer has the requisite corporate power and authority to
execute, deliver and perform this Agreement. This Agreement has been duly authorized, executed and
delivered by the Buyer and is the legal, valid and binding obligation of the Buyer enforceable in
accordance with its terms.
(b) No Conflict. Neither the execution and delivery of this Agreement or the
consummation of any of the transactions contemplated hereby nor compliance with or fulfillment of
the terms, conditions and provisions hereof will conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation or a loss of rights under (A) the certificate
of incorporation or by-laws of the Buyer, (B) any material note, instrument, agreement, mortgage,
lease, license, franchise, permit or other authorization, right, restriction or obligation to which
the Buyer is a party or by which the Buyer is bound, (C) any court order to which the Buyer is a
party or by which the Buyer is bound, or (D) any requirements of laws, rules or regulations
affecting the Buyer or otherwise applicable to the transactions contemplated by this Agreement.
4.1 No Proxy and Voting of the Shares. (a) The Seller covenants and agrees that it
shall not grant to any Person any proxy with respect to any of the Shares (other than to a
designated representative of the Buyer pursuant to a proxy statement of the Buyer). The Seller
further covenants and agrees that it shall cause all of the Shares for which it has the right to
vote as of the record date for any meeting of stockholders of Buyer to be present for quorum
purposes and to be voted at any such meeting or at any adjournments or postponements thereof, (x)
in favor of each
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director nominated and recommended by the Board of Directors of Buyer (the “Board”) for
election at any such meeting and (y) in accordance with the recommendation of the Board for each
other matter that is subject to a vote of the stockholders at any such meeting.
(b) In furtherance of the foregoing, the Seller has executed, dated and delivered to the Buyer
a completed proxy (the “Proxy”) for the Buyer’s Annual Meeting of Stockholders to be held on July
24, 2008 (the “Annual Meeting”), which Proxy has been voted (x) in favor of each director nominated
and recommended by the Board for election at the Annual Meeting and (y) in accordance with the
recommendation of the Board for each other matter that is subject to a vote of the stockholders at
the Annual Meeting. Seller further covenants and agrees that (i) it shall not revoke the Proxy
without the Buyer’s consent and (ii) if requested by the Buyer, it shall grant a new proxy to the
Buyer in favor of each director nominated and recommended by the Board for election and in
accordance with the recommendation of the Board for each other matter that is subject to a vote of
the stockholders, in each case in connection with any new solicitation of proxies by the Buyer in
connection with the Annual Meeting or any adjournments or postponements thereof.
(c) Prior to filing any materials or documents with any Person in connection with the
transactions contemplated by this Agreement, each of the Seller and the Buyer agrees that it shall
use its respective reasonable efforts to afford the other party a reasonable opportunity to review
and comment on such materials or documents.
4.2 Agreement of the Seller. The Seller agrees that for a period of one year from the
date of this Agreement, the Seller will not, and shall cause its Affiliates not to (and the Seller
and its Affiliates will not assist or form a group within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), act in concert or participate
with or encourage other Persons to), directly or indirectly, acquire or offer to acquire, seek,
propose or agree to acquire, by means of a purchase, tender or exchange offer, business combination
or in any other manner, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), of
any of the assets, businesses or securities of the Buyer or any of its Affiliates, including rights
or options to acquire such ownership (including from any third Person).
4.3 Mutual Releases. (a) The Seller, and anyone claiming through it or on its behalf,
as the case may be, agrees to irrevocably and unconditionally release, waive and forever discharge
the Buyer and its respective Affiliates (as hereinafter defined), officers, directors, stockholders
and employees and past, present or future Affiliated Persons (as hereinafter defined) from, and
covenants not to xxx the Buyer Released Parties (as hereinafter defined) with respect to, any and
all actions, causes of action, claims, demands, rights, remedies, expenses and liabilities of
whatever kind or character, at law or in equity, whether now known or unknown, that such Seller now
has, has ever had, or may ever have against any of the Buyer Released Parties with respect to the
Buyer, specifically arising from or specifically related to the purchase by the Buyer of the Shares
from the Seller as contemplated by the terms of this Agreement.
(b) The Buyer, and anyone claiming through it or on its behalf, as the case may be, agrees to
irrevocably and unconditionally release, waive and forever discharge the Seller and its respective
Affiliates, officers, directors, partners and employees and past, present or future Affiliated
Persons from, and covenants not to xxx the Seller Released Parties (as hereinafter
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defined) with respect to, any and all actions, causes of action, claims, demands, rights,
remedies, expenses and liabilities of whatever kind or character, at law or in equity, whether now
known or unknown, that such Seller now has, has ever had, or may ever have against any of the
Seller Released Parties with respect to the Seller, specifically arising from or specifically
related to the sale by the Seller of the Shares to the Buyer as contemplated by the terms of this
Agreement.
4.4 Definitions. As used in this Article IV, the terms set forth below shall
be defined as follows:
(a) “Affiliated Persons” shall mean such entity’s directors, partners, members, officers,
managers, shareholders, principals, administrators, other management personnel, employees or
similar persons; provided, that “Affiliated Persons” shall only include individuals and not legal
entities.
(b) “Affiliates” shall mean an entity or other business organization that directly or
indirectly, controls, is controlled by or is under common control with Buyer, as the case may be.
(c) “Buyer Released Parties” shall mean the Buyer and its Affiliates and Affiliated Persons.
(d) “Governmental Authority” shall mean any court, government (federal, state, local or
foreign), department, commission, board, bureau, agency, official or other regulatory,
administrative or governmental body.
(e) “Person” shall mean any individual, corporation, partnership, joint venture, limited
liability company, association, joint-stock company, trust, unincorporated organization or
Governmental Authority.
(f) “Seller Released Parties” shall mean the Seller and its Affiliates and Affiliated Persons.
5.1 Confidentiality. The Seller agrees that it will treat in confidence all
documents, materials and other information which it shall have obtained in regards to this
Agreement and the transactions being effected hereby (whether obtained before or after the date of
this Agreement). Except as required by law (including applicable federal securities laws), the
Seller agrees that it shall not disclose the terms or the nature of this Agreement or the
transactions or consents being effected hereby. Seller acknowledges that Buyer may disclose the
terms or nature of this Agreement or the transaction or consents being effected hereby.
5.2 Successors and Assigns. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto, their legal representatives, heirs, executors, administrators,
successors, assigns and transferees.
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5.3 Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws (as opposed to the conflicts of law provisions) of the State of Delaware.
5.4 Counterparts. This Agreement may be executed in two counterparts, each of which
shall be deemed to be an original, but both of which together shall constitute one and the same
instrument; and shall become binding when both counterparts have been signed by the parties hereto
and delivered to both of the parties hereto.
5.5 Amendment. This Agreement may not be amended, modified or supplemented except by
a writing signed by an authorized representative of each of the parties hereto.
5.6 Entire Agreement. This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the parties with respect to
the subject matter hereof.
5.7 Specific Performance. The parties hereto acknowledge and agree that irreparable
damage would occur if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. Accordingly, each of the Seller and the Buyer
agrees that, in the event of any breach of the provisions of this Agreement by such party, the
non-breaching party, without prejudice to any rights to judicial relief it may otherwise have,
shall be entitled to seek equitable relief, including injunction, and to enforce specifically the
terms and provisions of this Agreement in any court of the United States of America or any state
having jurisdiction. Each of the parties hereto (to the extent such party is the breaching party)
further agrees that it will not oppose the granting of such relief on the basis that the
non-breaching party has an adequate remedy at law.
5.8 Severability. Wherever possible, each provision hereof shall be interpreted in
such manner as to be effective and valid under applicable law, but in case any one or more of the
provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such provision shall be ineffective in the jurisdiction involved to the extent, but
only to the extent, of such invalidity, illegality or unenforceability without invalidating the
remainder of such invalid, illegal or unenforceable provision or provisions or any other provisions
hereof, unless such a construction would be unreasonable.
5.9 Third Parties. Without limitation of the provisions of Section 4.3,
nothing contained in this Agreement or in any instrument or document executed by any party in
connection with the transactions contemplated hereby shall create any rights in, or be deemed to
have been executed for the benefit of, any person or entity that is not a party hereto or a
successor or permitted assign of such a party.
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TESSCO TECHNOLOGIES INCORPORATED |
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By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | SVP, Chief Financial Officer | |||
BRIGHTPOINT, INC. |
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By | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Chairman of the Board and Chief Executive Officer |
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