PORTIONS OF THIS DOCUMENT INDICATED BY AN ++ HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT OF SUCH INFORMATION.
THIRD AMENDMENT TO DISTRIBUTOR AGREEMENT
This Third Amendment to Distributor Agreement ("Amendment") is
effective as of December 31, 2005 and is by and between Nokia Inc. ("Nokia") and
Brightpoint North America L.P. ("Brightpoint").
WHEREAS, Nokia and Brightpoint entered into that certain Distributor
Agreement dated as of October 29, 2001, as amended by Amendment No. 1 to the
Distributor Agreement effective as of December 19, 2002, and by the Second
Amendment to the Distributor Agreement effective as of December 27, 2003 (the
"Agreement"); and
WHEREAS, the parties now desire to amend the Agreement as provided in
this Amendment;
NOW, THEREFORE, for and in consideration of the mutual covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto each agrees as
follows:
1. Capitalized Terms. Capitalized terms used but not defined herein shall
have the same meaning given to such terms in the Agreement.
2. Amendments. The Agreement is amended as set forth below. Unless
otherwise specified, all section references are to sections of the
Agreement, as previously amended.
(a) Section 1.3 is amended in its entirety as follows:
"1.3 During the period January 1, 2006 through December
31, 2006, Brightpoint agrees that its minimum
purchase goal shall be ++ units of Nokia Handsets,
and during the period January 1, 2007 through
December 31, 2007, Brightpoint agrees that its
minimum purchase goal shall be ++ units of Nokia
Handsets."
(b) Section 1.4 is amended by adding the following to the end
thereof:
"Notwithstanding the foregoing or any other provision of this
Agreement to the contrary, Nokia will have the unlimited right
to sell and provide ++ for purchase on their own account or
for distribution or resale to other third parties or
individuals."
(c) Section 1.6 is amended in its entirety as follows:
"1.6 Intentionally left blank."
(d) Section 2, Product Forecasts, of Amendment No. 1 to the
Agreement, is deleted in its entirety. Section 2.4 of the
Agreement, as amended in its entirety by the Second Amendment
to the Agreement, shall remain in full force and effect.
Sections 2.1, 2.2 and 2.3 of the Agreement (as Section 2.3 was
amended by the Second Amendment to the Agreement) are each
amended in their entirety as follows:
"2.1 On or before the tenth day of each month, Brightpoint
will deliver to Nokia a written, non-binding forecast
(each, a "Forecast") specifying Brightpoint's
commercially reasonable estimate of the quantities of
each Product that Brightpoint expects to purchase on
a ++ rolling basis during the ++ following the date
of such Forecast (each, a "Forecast Period").
Brightpoint acknowledges that each Forecast assists
Nokia in maintaining an orderly production flow for
the purpose of meeting Brightpoint's delivery
requirements. The ++ of each Forecast shall be
considered firm, and Brightpoint agrees to place
Purchase Orders (as defined below) in accordance with
each firm Forecast Period. In the event any
Brightpoint Purchase Order exceeds any Forecast,
Nokia will make every reasonable effort to meet
Brightpoint's volume requirements on a timely basis,
but shall not be bound for any Purchase Order volume
that exceeds the applicable Forecast.
2.2 In order to be effective, all orders for Product by
Brightpoint ("Purchase Orders") will specify the
quantity of each type of Product to be purchased, the
date or dates on which such Products are required to
be shipped and/or provided to Brightpoint, the
shipping method and the location to which such
Products should be shipped, and such other
information as reasonable required by Nokia. Unless
otherwise agreed in writing, each Purchase Order will
be submitted to Nokia in writing. Purchase Orders
will be deemed accepted upon Nokia's delivery to
Brightpoint of a quantity confirmation and shipping
schedule for the Products on a "Nokia Confirmed Ship
Date Report" that shall specify the date or dates on
which NOKIA promises to ship and/or provide the
Products to Brightpoint (each, a "Promise Date"). In
the event that Nokia has not delivered a Nokia
Confirmed Ship Date report within 10 business days
after receiving such Purchase Order, such Purchase
Order will be deemed accepted and the Requested
Date(s) shall be automatically deemed the Promise
Date(s). If Brightpoint does not object in writing to
a Nokia Confirmed Ship Date within ++ days
after receipt thereof, then the shipping schedule for
such Purchase Order will be deemed to be firm as set
forth in the applicable Nokia Confirmed Ship Date
Report.
2.3 Subject to the restrictions set forth herein,
Brightpoint may suspend a Purchase Order, in
Brightpoint's sole discretion, by written notice from
Brightpoint to Nokia at any time prior to ++ days
immediately preceding the Promise Date for such
Purchase Order as set forth in the Nokia Confirmed
Ship Date Report, for a period not in excess of ++
days from such Promise Date. Brightpoint may exercise
such postponement rights up to ++ times during each
consecutive ++ month period during the Term. In
addition to the foregoing postponement rights, in the
event NOKIA fails to ship and/or provide the Products
to Brightpoint within ++ business days from the
Promised Date(s), Brightpoint shall have the right to
cancel or adjust the applicable Purchase Order(s)
without Nokia's approval or authorization. Each
Purchase Order will be governed by all of the terms
and conditions of this Agreement. Should the terms of
any Purchase Order conflict with the terms of this
Agreement, the terms and conditions of this Agreement
shall govern. This Agreement will continue to apply
to a Purchase Order pursuant to the terms of this
Agreement until all obligations thereunder are
performed. Nokia will be excused from delivering
Products to Brightpoint to the extent that there are
supply or production constraints that limit Nokia's
production of such Products. In such an event, Nokia
will be entitled to allocate its production of such
Product among its customers and Nokia will
immediately notify Brightpoint thereof and of the
quantity of such Product allocated to Brightpoint."
(e) Section 3.2 is amended in its entirety as follows:
"3.2 All Product shipments will be made on a ++ to the
Brightpoint delivery location specified in the
applicable Purchase Order, with freight charges to be
borne by ++. Nokia will bear the risk of loss to the
destination and arrange for and absorb ++.
Brightpoint will have the right to reject Products in
a shipment if it determines that such Products are
damaged or do not conform to the Nokia Confirmed Ship
Date Report and notifies Nokia in writing thereof
within two days after the date of delivery of the
shipment to the designated ship-to location. Products
will be deemed accepted if Brightpoint does not so
notify Nokia."
(f) Section 3.4 is amended by deleting the last sentence thereof
that was added by Amendment No. 1 to the Agreement.
(g) Section 4.8 is deleted in its entirety.
(h) Section 5.1 is amended in its entirety as follows:
"If Brightpoint achieves a ++, Nokia's ++ share of all
handsets sold by Brightpoint for its general distribution
purposes in the Territory ++ during such calendar month. If
Brightpoint does not achieve ++ Nokia's ++ of all handsets
sold by Brightpoint for its general distribution purposes in
the Territory ++ during such calendar month. Notwithstanding
anything stated or implied in this Agreement to the contrary,
Nokia agrees that Brightpoint can pursue a direct purchasing
relationship with ++.
(i) Section 5.3 is amended to delete ++ in the first sentence
thereof and to replace such language with ++.
(j) Section 5.5(iv) is amended in its entirety as follows:
++
(k) Section 8.7 is deleted in its entirety.
(l) Section 12.1 is amended in its entirety as follows:
"12.1 Unless earlier terminated in accordance with the
provision of this Agreement, the term of this
Agreement shall commence on January 1, 2002, and
extend until January 1, 2008 ('Term')."
(m) Section 12.2 is amended in its entirety as follows:
"12.2 Either Party may terminate this Agreement immediately
by written notice to the other party in the event
that: (a) insolvency, bankruptcy or receivership
proceedings are instituted by or against the other
party; (b) the other party makes an assignment for
the benefit of creditors; or (c) the other party
ceases to conduct business. Either party may
terminate this Agreement by written notice to the
other in the event that the other party materially
breaches this Agreement, and fails to cure such
breach to the non-breaching party's satisfaction
within 30 days of receipt of written notice
specifying the breach. Failure to timely pay amounts
due under this Agreement to the other party shall be
deemed a material breach of this Agreement."
(n) Section 12.4 is amended in its entirety as follows:
"12.4 In connection with the expiration or termination of
this Agreement for any reason, Nokia may request that
Brightpoint continue to act
as Nokia's non-exclusive distributor for a period not
to ++ in order to facilitate the transition of
responsibility for the distribution of Nokia's
Products to another distributor(s) or to Nokia
itself. Any such request by Nokia must be in writing
and delivered to Brightpoint on or prior to the
effective date of expiration or termination of this
Agreement. In such an event, each party shall
continue to perform its obligations under this
Agreement (except for either party's obligations
under Sections 1.4 or 7.1 or Articles 5 or 6) ++
following the effective date of expiration or
termination of this Agreement or until such earlier
date that Nokia ends the transition period by
providing 15 days advance written notice to
Brightpoint. Each party shall provide reasonable
cooperation and assistance as requested by the other
party in connection with such transition of
distribution."
(o) Section 18A is deleted in its entirety.
(p) Sections 19.10 and 19.11 are amended in their entirety as
follows:
"19.10 Intentionally left blank.
19.11 Intentionally left blank."
(q) All references to Attachment 1 to the Agreement shall be
deemed to be references to such written documentation issued
by Nokia from time-to-time during the Term of the Agreement
specifying the Products offered for sale to Brightpoint under
the Agreement and the prices therefore.
(r) Attachment 5 to the Agreement is replaced in it entirety with
Attachment 5 attached to this Amendment.
(s) Attachment 10 and Schedule 4.1 to the Agreement are deleted in
their entirety.
3. Survival; Conflict. All terms and provisions of the Agreement not
specifically amended hereby shall remain in full force and effect. In
the event of any conflict between the terms and provisions of this
Amendment and the terms and provisions of the Agreement, the terms and
provisions of this Amendment shall control.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of
the date first set forth above.
NOKIA INC. BRIGHTPOINT NORTH AMERICA L.P.
By: Brightpoint North America,
Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ J. Xxxx Xxxxxx
----------------------------------- --------------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: J. Xxxx Xxxxxx
----------------------------------- --------------------------
Title:SVP Nokia Inc. Title: President
----------------------------------- --------------------------
Date: January 11, 2006 Date: January 16, 2006
----------------------------------- --------------------------
ATTACHMENT 5
NOKIA DIRECT ACCOUNTS
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