EXHIBIT 4.(a)(xxv)
DATED JANUARY 17, 2002
RED-M (COMMUNICATIONS) LIMITED (1)
- and -
M XXXXXX AND OTHERS (2)
- and -
XXXXX NETWORKS NV (3)
- and -
THE APAX FUNDS (4)
- and -
THE AMADEUS FUNDS (5)
- and -
INTEL CAPITAL CORPORATION (6)
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AMENDMENT TO
SHAREHOLDERS AGREEMENT
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Amendment Number 2
AMENDMENT TO SHAREHOLDERS AGREEMENT dated 17th January 2002
PARTIES:
(1) RED-M (COMMUNICATIONS) LIMITED a company incorporated in England and
Wales under Number 03985301 whose registered office is at Wexham
Springs, Xxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, Xxxxxxxxx XX0 0XX ("COMPANY").
(2) THE PERSONS whose names and addresses are set out in Schedule 1.
(3) XXXXX NETWORKS NV a company incorporated in the Netherlands whose
address is at Transpolis Schiphol Airport, Polaris Avenue, 23, 2132 JH
Hoofddorp, The Netherlands ("XXXXX").
(4) AP V GMBH & CO KG, a company incorporated in Germany (registered no HRA
78582) whose principal address is Xxxxxxxxxxxxxxx 0, 00000 Xxxxxx,
Xxxxxxx, APAX EUROPE V - A, L.P., a Delaware limited partnership
established under the Delaware Revised Uniform Limited Partnership Act
(the "EUROPE A FUND"), APAX EUROPE V - B, L.P., an English limited
partnership established under the Limited Partnerships Xxx 0000 (the
"EUROPE B FUND"), APAX EUROPE V-C GMBH & CO KG, a German limited
partnership (Kommanditgesellschaft) established under the German Civil
Code (Handelsgesetzbuch) (the "EUROPE C FUND"), APAX EUROPE V - D,
L.P., an English limited partnership established under the Limited
Partnerships Xxx 0000 (the "EUROPE D FUND"), APAX EUROPE V - E, L.P.,
an English limited partnership established under the Limited
Partnerships Xxx 0000 (the "EUROPE E FUND"), APAX EUROPE V - F, C.V., a
Dutch limited partnership (commanditaire vennootschap) established
under the Wetboek van Koophandel (the "EUROPE F Fund"), and APAX EUROPE
V - G, C.V., a Dutch limited partnership (commanditaire vennootschap)
established under the Wetboek van Koophandel (the "EUROPE G FUND"),
each having its principal place of business at 00-00 Xxxxxxxx Xxxx, Xx.
Xxxxx Xxxx, Xxxxxxxx, XX0 0XX and each acting by its investment manager
Apax Partners Europe Managers Limited whose registered office is at 00
Xxxxxxxx Xxxxx, Xxxxxx X0X 0XX, (collectively referred to as "APAX" and
individually referred to as an "APAX FUND").
(5) AMADEUS II A, a limited partnership established in England under the
Limited Partnership Xxx 0000, whose principal place of business is at 0
Xxxxxxxxxxx Xxxx, Xxxxxxxxx, XX0 0XX acting by its manager, AMADEUS
CAPITAL PARTNERS LIMITED having its registered office at 0 Xxxxxxxxxxx
Xxxx, Xxxxxxxxx, XX0 0XX ("AIIA"), AMADEUS II B, a limited partnership
established in England under the Limited Partnership Xxx 0000, whose
principal place of business is at 0 Xxxxxxxxxxx Xxxx, Xxxxxxxxx, XX0
0XX acting by its manager, AMADEUS CAPITAL PARTNERS LIMITED having its
registered office at 0 Xxxxxxxxxxx Xxxx, Xxxxxxxxx, XX0 0XX ("AIIB"),
AMADEUS II C, a limited partnership established in England under the
Limited Partnership Xxx 0000, whose principal place of business is at 0
Xxxxxxxxxxx Xxxx Xxxxxxxxx XX0 0XX acting by its
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manager, AMADEUS CAPITAL PARTNERS LIMITED having its registered office
at 0 Xxxxxxxxxxx Xxxx, Xxxxxxxxx, XX0 0XX ("AIIC"), AMADEUS II GMBH &
CO KG, a German limited partnership acting by its manager AMADEUS
CAPITAL PARTNERS LTD ("AKG"), AMADEUS II AFFILIATES, a limited
partnership established in England under the Limited Partnership Xxx
0000, whose principal place of business is at 0 Xxxxxxxxxxx Xxxx,
Xxxxxxxxx, XX0 0XX acting by its manager, AMADEUS CAPITAL PARTNERS
LIMITED having its registered office at 0 Xxxxxxxxxxx Xxxx, Xxxxxxxxx,
XX0 0XX ("AII AFFILIATES"). (AIIA, AIIB and AIIC, AKG and AII
Affiliates collectively referred to as "AMADEUS" and individually to as
an "AMADEUS FUND").
(6) INTEL CAPITAL CORPORATION a Cayman Islands company whose registered
office is situated at the offices of Caledonian Bank & Trust Limited,
Caledonian House, PO Box 1043, Xxxxxx Town, Grand Cayman, Cayman
Islands ("INTEL").
RECITALS:
WHEREAS the parties entered into a Shareholders Agreement dated September 10,
2001 (the "Shareholders Agreement").
WHEREAS in consideration of the mutual covenants herein the parties wish to
amend the terms of the Shareholders Agreement on the terms and conditions of
this amendment agreement.
IT IS AGREED:
1. Clause 8 of the Shareholders Agreement be substituted in its entirety
by the following Clause:-
"8. XXXXX NON-COMPETE UNDERTAKINGS*
8.1 Xxxxx undertakes with the Company that, except with the written consent
of the Board (excluding the Xxxxx Directors) and as covered by the
exception in Clause 8.2 below:
8.1.1 that for a period commencing on the date hereof and expiring
on the date twelve months after the Termination Date it will
not whether by itself, through its employees or agents or
otherwise howsoever and whether on its behalf or on behalf of
any person, firm, company or other organisation, directly or
indirectly:
8.1.1.1 in competition with any member of the Group within
the Restricted Area be engaged or otherwise
interested in the business of manufacturing,
designing, distributing, selling, supplying or
otherwise dealing with Goods with the exception of
wireless NIC Cards (for use in PC's and Laptops only,
not to be used in PDA's and other handheld devices);
8.1.1.2 in competition with any member of the Group, solicit
business from or canvas any Customer or Prospective
Customer if such solicitation or canvassing is in
respect of Goods;
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* Confidential Treatment for various items in this section requested by Xxxxx
Networks N.V.
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8.1.1.3 in competition with any member of the Group accept
orders for Goods from any Customer or Prospective
Customer;
8.1.1.4 solicit or induce or endeavour to solicit or induce
any person who on the Termination Date was a
director/manager of any member of the Group to cease
working for or providing services to the Group,
whether or not any such person would thereby commit a
breach of contract;
8.1.1.5 employ or otherwise engage in the business of
manufacturing, distributing, designing, selling,
supplying or otherwise dealing with Goods any person
who was during the 12 months preceding the
Termination Date employed or otherwise engaged by any
member of the Group and who by reason of such
employment or engagement is in possession of any
trade secrets or confidential information relating to
the business of any member of the Group or who has
acquired influence over its Customers and Prospective
Customers;
interfere or seek to interfere with the continuance
of supplies to any member of the Group (or the terms
of such supplies) from any suppliers who shall have
been supplying components for material or services to
any member of the Group;
8.1.2 for the purposes of clauses 8.1 to 8.10 the following words
shall have the following meanings:
8.1.2.1 "GOODS" shall mean Bluetooth or 802.11 wireless LAN
or PAN networking solutions or directly competing
technology with the exception of wireless NIC Cards
(for use in PC's and Laptops only, not to be used in
PDA's or other handheld devices);
8.1.2.2 "SERVICES" shall mean the provision of managed
services relating to Bluetooth or 802.11 wireless LAN
or PAN networking solutions or directly competing
technology;
8.1.2.3 "CUSTOMER" shall mean any person, firm, company, or
other organisation whatsoever to whom or which any
member of the Group distributed, sold or supplied
Goods during the one year immediately preceding the
Termination Date;
8.1.2.4 "PROSPECTIVE CUSTOMER" shall mean any person, firm,
company or other organisation whatsoever with whom or
which any member of the Group had negotiations or
discussions regarding the possible distribution, sale
or supply of Goods during the twelve months
immediately preceding the Termination Date;
8.1.2.5 "RESTRICTED AREA" shall mean
8.1.2.5.1 United Kingdom, the European Union, the
United States, Canada and Japan; and
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8.1.2.5.2 any other country in the world where, on
the Termination Date, any member of the
Group was engaged in the manufacture,
distribution, design, sale or supply or
otherwise dealt with Goods;
8.1.2.6 "TERMINATION DATE" shall mean the date that Xxxxx
ceases to hold 20% or more of the issued share
capital of the Company.
8.2 Xxxxx shall be permitted to manufacture, design, distribute, sell,
supply or otherwise deal with wireless NIC Cards (for use in PC's and
Laptops only, not to be used in PDA's and other handheld devices).
8.3 Xxxxx, during the period that Clause 8.1 is in effect, agrees not to,
through its employees or agents or otherwise howsoever and whether on
its own behalf or on behalf of any person, firm, company or other
organisation, directly or indirectly, distribute, sell or otherwise
deal with Goods which have been manufactured, designed, distributed,
sold, or supplied by the following companies who are deemed to directly
compete with the Company's Access Points, Access Servers and Genos
products: XXX (together referred to as the "Competitors"). Subject
always to the provisions of Clause 8.1, this Clause shall not apply
to:-
8.3.1 any companies or businesses which are acquired by any of the
Competitors after the date of this amendment agreement and
which companies or businesses have executed a legally binding
agreement with Xxxxx prior to such acquisition. In the event
that this subclause 8.3.1 applies, Xxxxx shall not enter into
any further relationship, agreement or arrangement with such
companies or businesses which is outside the terms of the
legally binding agreement referred to above in this subclause
8.3.1;
8.3.2 any companies in which any of the Competitors have a minority
interest provided such companies are not also listed as one of
the Competitors in Clause 8.3.
8.4 Subject always to the provisions of Clause 8.1, in the event Xxxxx
wishes to include Goods or Services in the product range of Xxxxx
during the period that Clause 8.1 is in effect, Xxxxx shall give the
Company the opportunity to be the exclusive supplier to Xxxxx of such
Goods or Services in accordance with the following procedure:
(a) Xxxxx shall give the Company written notice of its
intention to include Goods or Services in its product range as
soon as reasonably practicable, such written notice to include
sufficient details to enable the Company to provide a quote
for such Goods or Services;
(b) the Company shall notify Xxxxx within thirty (30) days of
receiving written notice from Xxxxx pursuant to subclause (a)
as to whether it wishes to supply such Goods or Services and
shall provide Xxxxx with a written quote for such Goods or
Services;
(c) Following receipt from the Company of the written quote in
accordance with subclause (b), Xxxxx shall be entitled to
approach third parties for the purposes only of obtaining
similar quotes for such Goods and Services. Subject to
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the terms of any confidentiality agreements Xxxxx may have
entered into with third parties, Xxxxx shall give the Company
the opportunity (if necessary) to improve its quote. Xxxxx
shall act reasonably and in good faith and shall not make any
unreasonable requests of the Company. If the Company's quote
is at least as competitive as any quote from a third party and
Xxxxx and the Company can agree terms Xxxxx shall place such
business for such Goods and Services solely with the Company.
(d) If the Company notifies Xxxxx that the Company does not
wish to supply the Goods or Services, fails to notify Xxxxx
within the thirty (30) day period referred to in subclause
(b), fails to provide a competitive quote, or the parties fail
to agree upon the terms of supply by the Company in accordance
with subclause (c) then;
(i) if the Goods or Services requested by Xxxxx
pursuant to this Clause are in the Company's immediate product
plan at the time of the request, Xxxxx shall be permitted to
obtain such Goods or Services from a third party supplier
(subject always to the provisions of Clause 8.3) for resale
but shall not be permitted to design, develop or manufacture
the Goods or Services itself.
(ii) if the Goods or Services requested by Xxxxx
pursuant to this Clause are not in the Company's immediate
product plan at the time of the request, then Xxxxx shall be
permitted to obtain such Goods or Services from a third party
supplier (subject always to the provisions of Clause 8.3) for
resale and/or to design, develop or manufacture such Goods or
Services itself.
8.5 Xxxxx (having taken independent legal advice) agrees with the Company
that the above non-compete undertakings are reasonable and necessary
for the protection of the legitimate interests of the Initial
Investors.
8.6 While the above undertakings are considered to be reasonable it is
agreed that if any such undertakings shall be adjudged to go beyond
what is reasonable for the protection of the interests of the Company
but would be reasonable if part or parts were deleted or modified, the
relevant undertaking or undertakings shall apply with such deletion
and/or modification as may be necessary to make it or them valid and
effective.
8.7 Xxxxx shall procure that each group company of Xxxxx complies with this
clause 8.
8.8 Nothing contained in this Clause 8 shall preclude or restrict Xxxxx or
a group company of Xxxxx acquiring another company, group of companies,
business or undertaking (the "ACQUIRED UNDERTAKING") whose business or
businesses include(s) any of the businesses which would, following such
acquisition, be subject to the restrictions set out in clause 8.1 and
Clause 8.3 (the "RELEVANT BUSINESS") provided that the annual turnover
of the Relevant Business as shown in the most recently audited annual
accounts of the Acquired Undertaking prior to the date of the
acquisition did not account for more than 5 per cent of the aggregate
turnover of the Acquired Undertaking, as shown by such accounts and
Xxxxx shall ensure that such part of the Relevant Business as is
subject to the restrictions set out in this clause 8 is disposed of
within 6 months of acquisition to a third party or parties.
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8.9 In relation to any Board meetings to consider, or action to be taken by
the Company in respect of any breach or suspected breach by Xxxxx of
this clause 8, Xxxxx shall procure that its Nominated Directors shall
not attend such Board meetings (unless requested by the Initial
Investors) and shall not vote thereat and will permit the prosecution
of such matter by the Apax Director and Amadeus Director on behalf of
the Board (or a committee of the Board appointed by them).
8.10 Notwithstanding the provisions of the above non-compete undertakings,
in the event that:
8.10.1 Xxxxx shall during the term of this Agreement supply any
services within the Restricted Area, which compete with any
Services provided by the Company; or
8.10.2 the Company shall during the term of this Agreement supply any
Services within the Restricted Area, which compete with any
services provided by Xxxxx or any member of the Xxxxx group;
the board of Xxxxx shall meet with the Board in order to resolve the
conflict of interests between the respective businesses of the Company
and Xxxxx and the Company and Xxxxx acting in good faith shall use
their respective best endeavours to reach a workable solution to their
mutual benefit."
2 This amendment agreement is supplemental to the Shareholders Agreement
and the provisions of the Shareholders Agreement (as amended by this
amendment agreement) shall accordingly remain in full force and effect.
3. This amendment agreement may be executed in any number of counterparts,
each of which when executed and delivered is an original, but all the
counterparts together constitute the same document.
4. This amendment agreement is governed by English law.
EXECUTED the day and year first before written.
SCHEDULE 1
(Employee and Trustee Shareholders)
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SIGNED for and on behalf of RED-M ) /s/ M XXXXXX
(COMMUNICATIONS) LIMITED in the presence of: ) /s/ C XXXXXXX
SIGNED by XXXXXXX XXXXXX in the presence of: ) /s/ M XXXXXX
) /s/ C XXXXXXX
SIGNED by XXXXX XXXXX in the presence of: ) /s/ S XXXXX
) /s/ C XXXXXXX
SIGNED by XXXXX XXXXX in the presence of: ) /s/ C MAYNE
) /s/ C XXXXXXX
SIGNED by ALISON EDGE in the presence of: ) /s/ A EDGE
) /s/ C XXXXXXX
SIGNED by XXXXXX XXXXXXX in the presence of: ) /s/ X XXXXXXX
) /s/ C XXXXXXX
SIGNED for and on behalf of RED-M TRUSTEE LIMITED ) /s/ A XXXXX
in the presence of: ) /s/ C XXXXXXX
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The Common seal of ) /s/ XXX XXXXX XXXXXX
COMPASS TRUSTEES LIMITED was hereunto affixed ) /s/ XXXX XXXXXXXX
in the presence of: ) /s/ WITNESS
SIGNED for and on behalf of XXXXX NETWORKS NV in ) /s/ M MALINA
the presence of: ) /s/ K HALLGATE
SIGNED for and on behalf of AP V GMBH & CO. KG )
by: ) /s/ DIRECTOR
EXECUTED for and on behalf of APAX PARTNERS )
EUROPE MANAGERS LIMITED acting in its capacity as )
manager of APAX EUROPE V-A, L.P. by: ) /s/ P ENGLANDER
EXECUTED for and on behalf of APAX PARTNERS )
EUROPE MANAGERS LIMITED acting in its capacity as )
manager of APAX EUROPE V-B, L.P. by: ) /s/ P ENGLANDER
EXECUTED for and on behalf of APAX PARTNERS )
EUROPE MANAGERS LIMITED acting in its capacity as )
manager of APAX EUROPE V-C, GMBH & CO. KG by: ) /s/ P ENGLANDER
EXECUTED for and on behalf of APAX PARTNERS )
EUROPE MANAGERS LIMITED acting in its capacity as )
managers of APAX EUROPE V-D, L.P. by: ) /s/ P ENGLANDER
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EXECUTED for and on behalf of APAX PARTNERS )
EUROPE MANAGERS LIMITED acting in its capacity as )
manager of APAX EUROPE V-E, L.P. by: ) /s/ P ENGLANDER
EXECUTED for and on behalf of APAX PARTNERS )
EUROPE MANAGERS LIMITED acting in its capacity as )
manager of APAX EUROPE V-F, C.V. by: ) /s/ P ENGLANDER
EXECUTED for and on behalf of APAX PARTNERS )
EUROPE MANAGERS LIMITED acting in its capacity as )
manager of APAX EUROPE V-G, C.V. by: ) /s/ P ENGLANDER
EXECUTED for and on behalf of AMADEUS CAPITAL )
PARTNERS LIMITED acting in its capacity as )
manager of AMADEUS II A by: ) /s/ H XXXXXX
EXECUTED for and on behalf of AMADEUS CAPITAL )
PARTNERS LIMITED acting in its capacity as )
manager of AMADEUS II B by: ) /s/ H XXXXXX
EXECUTED for and on behalf of AMADEUS CAPITAL )
PARTNERS LIMITED acting in its capacity as )
manager of AMADEUS II C by: ) /s/ H XXXXXX
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EXECUTED for and on behalf of AMADEUS CAPITAL )
PARTNERS LIMITED acting in its capacity as )
manager of AKG by: ) /s/ H XXXXXX
EXECUTED for and on behalf of AMADEUS CAPITAL )
PARTNERS LIMITED acting in its capacity as )
manager of AII AFFILIATES by: ) /s/ H XXXXXX
EXECUTED for and on behalf of INTEL CAPITAL )
CORPORATION by: )
)
By: /s/ G KERSHAW
Name: XXXX XXXXXXX
Title: ASSISTANT TREASURER
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