Exhibit 2.2
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "Agreement") is made as of the 1st
day of November, 2003 (the "Effective Date"), by and among BRIGHTPOINT INDIA
PRIVATE LIMITED, a company limited by shares organized under the laws of India,
having its registered office at X-00 Xxxxxxxx Xxxxx, 00, Xxxxxxxx Xxxxxx Xxxx,
Xxx Xxxxx 110 001, India (the "Company"), BRIGHTPOINT HOLDINGS B.V., a company
incorporated in The Netherlands and having its principal office at Xxxxxxxxxxx
000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx ("Brightpoint"), and PERSEQUOR LIMITED,
a company incorporated in the British Virgin Islands, having its registered
office at Waterfront Drive, Xxxx Xxxxx Building, 2nd Floor, Xxxxxxx'x Xxx, Road
Town, Tortola, British Virgin Islands ("Persequor"). For purposes of this
Agreement, Brightpoint and Persequor are sometimes hereinafter referred to
collectively as the "Investors" and individually as an "Investor".
RECITALS
A. The Company is licensed to conduct business in India.
B. As of the Effective Date, the Company has an authorized share
capital of one million (1,000,000) ordinary shares with a par value of Indian
Rupees ten (Rs. 10) per share.
C. As of the Effective Date, Brightpoint is the sole legal and
beneficial owner of six hundred thirty-six thousand six hundred (636,600)
ordinary shares in the capital of the Company, constituting one hundred percent
(100%) of the total issued and outstanding shares in the capital of the Company.
D. In connection with that certain Management Services Agreement
by and between the Company and Persequor of even date herewith (the "Management
Agreement"), Brightpoint has agreed to transfer to Persequor as of the Effective
Date ninety-five thousand four hundred ninety (95,490) ordinary shares in the
capital of the Company, constituting fifteen percent (15%) of the total issued
and outstanding shares in the capital of the Company (the "Sale Shares").
E. The Investors and the Company desire to enter into this
Agreement for the purposes of, among other things, (i) Brightpoint transferring
to Persequor the Sale Shares such that upon completion of such transfer
Persequor shall become the owner of fifteen percent (15%), and Brightpoint shall
become the owner of eighty-five percent (85%), of the total issued and
outstanding shares in the capital of the Company and (ii) promoting their mutual
interests by agreeing to certain matters relating to the operations of the
Company and the disposition of certain of the shares in the capital of the
Company.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and agreements contained herein, the parties hereto agree as follows:
1. Other Definitions. As used in this Agreement, the following terms have
the respective meanings set forth below:
Additional Capital Contributions: means any contributions to the equity
of the Company that Brightpoint may make if requested by the Board from time to
time in addition to the Minimum Capital Contribution.
Affiliate: means, in relation to any party, any other Person that,
directly or indirectly through one or more intermediaries, Controls such party,
is Controlled by such party or is under common Control with such party.
Appraisal Notice: means a written notice provided by one party to
another party requesting the initiation of an Appraisal Proceeding pursuant to
and in accordance with the terms and conditions of this Agreement.
Appraisal Proceeding: means that a party in question, on the one hand,
and the other party in question, on the other hand, shall each appoint an
Appraiser within ten (10) days of sending or receiving an Appraisal Notice. Each
party appointing an Appraiser shall, within thirty (30) days of appointment,
cause such Appraiser to separately investigate the value of the consideration
for the Shares in question as of the proposed transfer date in question and
submit a copy of the written appraisal of that value to each party. If the
appraised values of such consideration (the "Earlier Appraisals") vary by less
than ten percent (10%), the average of the two (2) appraisals on a per Share
basis shall be controlling. If the appraised values vary by more than ten
percent (10%), the Appraisers, within ten (10) days of the submission of the
last appraisal, shall appoint a third Appraiser. The third Appraiser shall,
within thirty (30) days of his appointment, appraise the value of the
consideration for the Shares in question as of the proposed transfer date in
question and submit a copy of his written appraisal of that value to each party.
The value determined by the third Appraiser shall be controlling unless the
value is greater than the two (2) Earlier Appraisals, in which case the higher
of the two (2) Earlier Appraisals will control, and unless that value is lower
than the two (2) Earlier Appraisals, in which case the lower of the two (2)
Earlier Appraisals will control. If (i) any party in question fails to appoint
an Appraiser, (ii) the two Appraisers fail to appoint the third Appraiser or
(iii) any Appraiser fails after appointment to submit his appraisal, in each
case within the required period, either party in question may apply to the
President for the time being of the LCIA solely for the purpose of seeking the
appointment of a substitute Appraiser for such Appraiser, third Appraiser or
substitute Appraiser, as the case may be, and any such appointee by the
President for the time being of the LCIA shall be appointed as an Appraiser and
not as an arbitrator. Each party in question shall bear the cost of the
appraisal submitted by the Appraiser appointed by or for it; provided, however,
that the cost of the appraisal submitted by the third Appraiser appointed by the
first two (2) Appraisers, or any substitute Appraiser for such third Appraiser,
shall be shared equally by the parties in question. All appraisals shall be
determined on the basis of the fair market value of the Company as a whole
(including all goodwill), with the value allocated for the Shares in question to
be in proportion to the ratio that such Shares bear to the total Shares issued
and outstanding.
Appraiser: means an internationally recognized investment banking firm
or a valuation firm appointed by a party or by other Appraisers in connection
with an Appraisal Proceeding initiated pursuant to and in accordance with the
terms and conditions of this Agreement.
Available Cash: means the aggregate amount of cash on hand or in bank,
money market or similar accounts of the Company from time to time derived from
any source (other than Capital Contributions and Liquidation Proceeds) which the
Board determines is available for distribution to the shareholders of the
Company after taking into account any amount required or appropriate to maintain
an appropriate amount of reserves.
Board: has the meaning ascribed thereto in Section 3(b).
BPAL: means Brightpoint Asia Limited.
BPAL Management Agreement: means that certain Management Services
Agreement dated as of August 7, 2002 between BPAL and Persequor.
Brightpoint Director(s): has the meaning ascribed thereto in Section
3(b).
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Business: means marketing and distributing wireless telecommunication
handsets and related accessories, and the provision of related services, to
customers located in India.
Capital Asset: means any equipment or other asset of the Company that
is treated as a capital asset under GAAP.
Capital Contributions: means, with respect to a shareholder of the
Company, the total amount of cash contributed by or on behalf of such
shareholder to the equity capital of the Company.
Class A Preference Shares: means the Class A Preference Shares that the
Company is authorized to issue only to Brightpoint or its Affiliates pursuant to
the Memorandum and Articles of Association of the Company.
Competitive Business: means any business or other activity that
directly or indirectly competes with the Business.
Control or Controlled: means (a) the power (whether directly or
indirectly and whether by the ownership of share capital or the possession of
voting power by contract or otherwise) to appoint and/or remove all or such of
the members of the board of directors or other governing body of a Person as are
able to cast a majority of votes capable of being cast by the members of that
board or body on all, or substantially all, matters, or otherwise to control or
have the power to control the policies and affairs of that Person; and/or (b)
the holding and/or the possession of the beneficial interest in and/or the
ability to exercise the voting rights applicable to shares or other securities
in a Person which confer in aggregate on the holders thereof more than fifty
percent (50%) of the total voting rights exercisable at general meetings of that
Person on all, or substantially all, matters.
Discount: has the meaning ascribed thereto in Section 6(b)(ii).
Drag-Along Notice: has the meaning ascribed thereto in Section
4(c)(ii).
Drag-Along Right: has the meaning ascribed thereto in Section 4(c)(i).
Excluded Persons: means Xxxx Xxxxxxx-Xxxxxx, Aftermark Technologies,
Avenir, Brightstar, CTDI, Cellstar Corporation, Dangaard Telecom, Xxxxxxxx
Xxxxx, Xxxx Xxxxxxxxx, T. Xxxxx Xxxxxxxxxx, Xxxxxx Micro, Xxxx Xxxxxx, QDI or
Tech Data and any of their respective Affiliates actually known to Persequor
after reasonable inquiry.
GAAP: means U.S. generally accepted accounting principles.
Interest Rate (Rupees): means an annual return equal to the published
rate of the State Bank of India on the Indian Rupee ninety (90) day rate in
effect on the day the Shareholder Loan in question is made, which rate shall be
reset at calendar quarter rests on the last day of each calendar quarter for the
succeeding calendar quarter during the period that such loan or part thereof
remains outstanding.
Interest Rate (USD): means an annual return equal to the offered
interest rate for deposits in USD for a ninety (90) day period that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) in effect on the day the
Shareholder Loan in question is made (but if banks in the City of London are not
generally open for interbank or foreign exchanges on such day, then the next
such day), which rate shall be reset at calendar quarter rests on the last day
of each calendar quarter for the succeeding calendar quarter during the period
that such loan or part
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thereof remains outstanding (but if banks in the City of London are not
generally open for interbank or foreign exchanges on such day, then the next
such day).
LCIA: has the meaning ascribed thereto in Section 10(e).
Liquidation Proceeds: means the proceeds from the sale of a Capital
Asset and all Property at the time of the liquidation of the Company and all
proceeds thereof, including, but not limited to, the receipt of a note or other
instrument providing for installment payments.
Minimum Capital Contribution: has the meaning ascribed thereto in
Section 7(a)(ii).
Persequor Director(s): has the meaning ascribed thereto in Section
3(b).
Persequor Financed Shares: has the meaning ascribed thereto in Section
5(b).
Persequor Shares: means the Sale Shares, the Persequor Financed Shares
and any other Shares as may be owned by Persequor from time to time.
Person: means an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Property: means all properties and assets in which the Company may have
an interest or own from time to time.
Proposed Securities: has the meaning ascribed thereto in Section
5(b)(A).
Proposed Transferee: has the meaning ascribed thereto in Section
4(c)(i).
Put/Call Date: has the meaning ascribed thereto in Section 6(a).
Put/Call Right Vesting Date: means the date which is the fourth (4th)
anniversary of the Effective Date.
Restricted Period: means the period of time commencing on the Effective
Date and expiring one (1) year after a party ceases to be a shareholder in the
Company.
Sale and Purchase Agreement: means that certain Sale and Purchase
Agreement by and among Brightpoint International Ltd., Brightpoint, Brightpoint,
Inc., Persequor, Brightpoint Middle East FZE and Brightpoint Jordan Limited
dated August 7, 2002.
Section 6(b)(ii) Notice: has the meaning ascribed thereto in Section
6(b)(ii).
Share: means a share in the capital of the Company from time to time,
whether an ordinary share or a share in any other class of shares.
Shareholder Loans: has the meaning ascribed thereto in Section 7(b).
Stated Return: means an annual return on the unreturned Capital
Contributions of holders of Class A Preference Shares equal to the Interest Rate
(Rupees) plus two and one-half percent (2.5%).
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Subject Shares: has the meaning ascribed thereto in Section 4(b)(ii).
Substitute Director(s): has the meaning ascribed thereto in Section
3(c).
Territory: means the geographical region consisting of the Republic of
India.
Transfer: means any sale, assignment, pledge, hypothecation, or other
disposition or encumbrance.
USD: means United States of America Dollars.
Withdrawing Director(s): has the meaning ascribed thereto in Section
3(c).
2. Transfer of Sale Shares to Persequor.
(a) Transfer. Brightpoint hereby transfers to Persequor, and
Persequor hereby accepts such transfer from Brightpoint, on the Effective Date
the Sale Shares.
(b) Registration. Brightpoint and the Company promptly shall
promptly take any and all actions necessary to register the Sale Shares in the
name of Persequor.
(c) Brightpoint Representations and Warranties. Brightpoint hereby
represents and warrants to Persequor as follows:
(i) on the Effective Date, the Company has six hundred
thirty-six thousand six hundred (636,600) ordinary
Shares issued and outstanding and has no other class
of Shares authorized, issued or outstanding;
(ii) on the Effective Date, the Sale Shares comprise
fifteen percent (15%) of all of the issued and
outstanding Shares and are fully paid up;
(iii) immediately prior to the transfer of the Sale Shares
pursuant to Section 2(a), Brightpoint solely owned,
of record and beneficially, the Sale Shares, free and
clear of any and all options, pledges, mortgages,
liens, restrictions, charges, other encumbrances or
claims of any kind whatsoever;
(iv) Brightpoint has full legal right, power, authority
and capacity to transfer the Sale Shares to
Persequor; and the delivery to Persequor of the Sale
Shares pursuant to the provisions of this Agreement
has transferred to Persequor valid title thereto,
free and clear of any and all options, pledges,
mortgages, liens, restrictions, charges, other
encumbrances or claims of any kind whatsoever;
(v) the Company is a company limited by shares duly
organized, validly existing and in good standing
under the laws of India and Brightpoint is a company
limited by shares duly organized, validly existing
and in good standing under the laws of The
Netherlands, and each has full power and authority to
own its property and to carry on business as now
being conducted or contemplated by this Agreement;
(vi) except as previously disclosed in writing to
Persequor, neither Brightpoint nor the Company is
subject to, or a party to, any charter, by-laws,
encumbrance, lease, license, permit, agreement,
contract, instrument, law, rule, ordinance,
regulation, order,
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judgment or decree, or any other restriction of any
kind or character, which would prevent consummation
of the transactions contemplated by this Agreement,
which could prevent compliance by Brightpoint or the
Company with the terms, conditions and provisions
hereof, which could prevent or hinder the continued
operation of Brightpoint's or the Company's business
after the Effective Date or which could materially
restrict the ability of Brightpoint or the Company to
acquire, own or use any property or conduct business
in any area or location where it currently conducts
its business;
(vii) there is no action, suit, proceeding at law or in
equity by any person or entity, or any arbitration or
any administrative or other proceeding by or before,
or any investigation by, any governmental or other
instrumentality or agency or body pending or, to the
best knowledge of Brightpoint, threatened against or
affecting Brightpoint or the Company, or any of their
respective properties or rights, which could
materially and adversely affect the right or ability
of Brightpoint or the Company to carry on its
business as now conducted, which could materially and
adversely affect the properties of Brightpoint or the
Company or which could materially and adversely
affect the ability of Brightpoint or the Company to
perform the transactions contemplated hereby;
(viii) no consent or approval by or on behalf of any person,
including any holder of any indebtedness or other
obligation of Brightpoint or the Company, and no
consent, permission, authorization, order or license
from, or notice to or filing with, any court or
governmental authority is necessary in connection
with the execution, delivery or performance by
Brightpoint or the Company of this Agreement or any
transaction contemplated hereby;
(ix) the minute books and records of the Company contain
complete originals or duplicate counterparts of the
minutes of all meetings of and actions or written
consents by the shareholders and the board of
directors of the Company;
(x) the Company does not own any, but currently leases,
real estate; and
(xi) to the best knowledge of Brightpoint, each of
Brightpoint and the Company is in compliance with all
applicable laws, regulations and ordinances.
(d) Persequor Representations and Warranties. Persequor hereby
represents and warrants to Brightpoint as follows:
(i) Persequor is a company limited by shares duly
organized, validly existing and in good standing
under the laws of the British Virgin Islands and has
full power and authority to own its property and to
carry on business as now being conducted or
contemplated by this Agreement;
(ii) except as previously disclosed in writing to
Brightpoint, Persequor is not subject to, or a party
to, any charter, by-laws, encumbrance, lease,
license, permit, agreement, contract, instrument,
law, rule, ordinance, regulation, order, judgment or
decree, or any other restriction of any kind or
character, which would prevent consummation of the
transactions contemplated by this Agreement, which
could prevent compliance by Persequor with the terms,
conditions and provisions hereof, which could prevent
or hinder the continued operation of Persequor's
business after the Effective Date or which
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could materially restrict the ability of Persequor to
acquire, own or use any property or conduct business
in any area or location where it currently conducts
its business;
(iii) there is no action, suit, proceeding at law or in
equity by any person or entity, or any arbitration or
any administrative or other proceeding by or before,
or any investigation by, any governmental or other
instrumentality or agency or body pending or, to the
best knowledge of Persequor, threatened against or
affecting Persequor, or any of its properties or
rights, which could materially and adversely affect
the right or ability of Persequor to carry on its
business as now conducted, which could materially and
adversely affect the properties of Persequor or which
could materially and adversely affect the ability of
Persequor to perform the transactions contemplated
hereby;
(iv) no consent or approval by or on behalf of any person,
including any holder of any indebtedness or other
obligation of Persequor, and no consent, permission,
authorization, order or license from, or notice to or
filing with, any court or governmental authority is
necessary in connection with the execution, delivery
or performance by Persequor of this Agreement or any
transaction contemplated hereby; and
(v) to the best knowledge of Persequor, Persequor is in
compliance with all applicable laws, regulations and
ordinances.
3. Covenants of the Parties.
(a) Legends. The certificates evidencing the Shares will bear the
following legend reflecting the restrictions on the transfer of such securities
contained in this Agreement:
"The securities evidenced hereby are subject to the terms of
that certain Shareholders Agreement dated as of the 1st day of
November, 2003 by and among the Company and certain investors
identified therein, including certain restrictions on
assignment, transfer, hypothecation and pledges. A copy of
such Shareholders Agreement has been filed with the Secretary
of the Company and is available upon request."
(b) Election of Directors. As of the Effective Date, the Board of
Directors of the Company (the "Board") will consist of six (6) directors, of
whom four (4) directors shall be designated by Brightpoint and two (2) directors
shall be designated by Persequor. From and after the Effective Date and at all
times throughout the term of this Agreement, the Investors and the Company shall
take all action within their respective power, including, but not limited to,
the voting of all Shares owned by them, required to cause the Board to be
constituted as set forth. Directors designated by Persequor are hereinafter
referred to as the "Persequor Directors," and directors designated by
Brightpoint are hereinafter referred to as the "Brightpoint Directors."
Persequor acknowledges and agrees that the number of directors of the Board may
be increased in accordance with and subject to the Memorandum and Articles of
Association of the Company; provided, however, that in no event shall the number
of Persequor Directors be decreased without the prior written consent of
Persequor.
(c) Replacement Directors. In the event that any Persequor
Director or Brightpoint Director designated in the manner set forth in Section
3(b) is unable to serve or, once having commenced to serve, is removed or
withdraws from the Board (a "Withdrawing Director"), such Withdrawing Director's
replacement (the "Substitute Director") will be designated only by Persequor if
the Withdrawing Director is a Persequor Director and only by Brightpoint if the
Withdrawing Director is a Brightpoint Director. A Persequor Director may be
removed, with or without cause, only by Persequor and Persequor shall thereafter
have the right to
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nominate a replacement for such director. A Brightpoint Director may be removed,
with or without cause, only by Brightpoint and Brightpoint shall thereafter have
the right to nominate a replacement for such director. The Investors and the
Company agree to take all action within their respective power, including, but
not limited to, the voting of capital stock of the Company owned by them to
cause the election of such Substitute Director promptly following his or her
nomination pursuant to this Section 3(c).
(d) Excluded Persons. Persequor agrees that none of the Excluded
Persons shall, directly or indirectly, have any financial or ownership interest
(other than trade debts, loans or other financing not convertible into equity)
in Persequor at any time during which Persequor shall own or have any interest
in any Shares.
4. Transfer of Shares.
(a) Resale of Securities. No holder of any Shares shall Transfer
any Shares other than in accordance with the provisions of this Section 4. Any
Transfer or purported Transfer of Shares made in violation of this Section 4
shall be null and void and of no effect. No Transfer of Shares shall be
effective unless and until the transferee shall have executed a counterpart of
this Agreement. In no event shall Persequor Transfer or attempt to Transfer any
of the Persequor Shares except in accordance with Section 4(c) or 6.
(b) Right of First Offer.
(i) No Transfer. Brightpoint shall not Transfer any of
its Shares (other than Transfers to any of its
Affiliates) unless Brightpoint shall have first made
the offer to sell to Persequor as contemplated by
this Section 4(b), and such offer shall not have been
accepted.
(ii) Offer by Transfer. A copy of Brightpoint's offer
shall be given to Persequor and shall consist of an
offer to sell to Persequor all of the Shares then
proposed to be transferred by Brightpoint (the
"Subject Shares") pursuant to a bona fide offer of a
third party, to which copy shall be attached a
statement of intention to Transfer to such third
party, the name and address of the prospective third
party transferee, the number of Shares involved in
the proposed Transfer and the terms of such Transfer.
(iii) Acceptance of Offer.
(A) Within ten (10) days after the receipt of
the offer described in Section 4(b)(ii),
Persequor may, at its option, elect to
purchase all, but not less than all, of the
Subject Shares. Persequor shall exercise
such option by giving written notice thereof
to Brightpoint within such ten (10) day
period; and if Persequor fails to provide
such notice within such ten (10) day period,
Persequor shall be deemed to have elected
not to exercise its option to purchase the
Subject Shares.
(B) The notice required to be given by Persequor
shall specify a date for the closing of the
purchase, which shall not be more than
twenty-five (25) days after the date of the
giving of such notice subject to the periods
specified for Appraisal Proceedings
initiated under Section 4(b)(v) if the offer
of Subject Shares under this Section 4(b) is
for consideration other than cash or cash
plus deferred payments of cash.
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(iv) Purchase Price. The purchase price per share for the
Subject Shares shall be the price per share offered
to be paid by the prospective transferee described in
the offer, which price shall be paid in cash or, if
so provided in the offer of the prospective
transferee, cash plus deferred payments of cash in
the same proportions, and with the same terms of
deferred payment as therein set forth.
(v) Consideration Other Than Cash. If the offer of
Subject Shares under this Section 4(b) is for
consideration other than cash or cash plus deferred
payments of cash, Persequor shall pay the cash
equivalent of such other consideration. If Persequor
and Brightpoint cannot agree on the amount of such
cash equivalent within ten (10) days after the
beginning of the ten (10) day period under Section
4(b)(iii)(A), any of such parties may, by five (5)
days' written notice to the other, initiate Appraisal
Proceedings for determination of the cash equivalent.
Persequor may give written notice to Brightpoint
revoking an election to purchase the Subject Shares
within five (5) days after determination of the
appraised value, if it chooses not to purchase the
Subject Shares.
(vi) Closing of Purchase. The closing of the purchase of
the Subject Shares shall take place at the office of
the Company or such other location as shall be
mutually agreeable and the purchase price, to the
extent comprised of cash, shall be paid at the
closing, and cash equivalents and documents
evidencing any deferred payments of cash permitted
pursuant to Section 4(b)(v) above shall be delivered
at the closing. At the closing, Brightpoint shall
deliver to Persequor the certificates evidencing the
Subject Shares to be conveyed, duly endorsed and in
negotiable form with all the requisite documentary
stamps affixed thereto.
(vii) Release from Restriction; Termination of Rights. If
the offer to sell is not accepted by Persequor,
Brightpoint may make a bona fide Transfer to the
prospective transferee named in the statement
attached to the offer in accordance with the agreed
upon terms of such Transfer, provided, that such
Transfer shall be made only in strict accordance with
the terms therein stated and the transferee agrees,
in writing, to be bound by the provisions of this
Agreement. If Brightpoint shall fail to make such
Transfer within sixty (60) days following the
expiration of the time hereinabove provided for the
election by Persequor or, in the event Persequor
revokes an election to purchase the Subject Shares
pursuant to Section 4(b)(v), within sixty (60) days
of the date of such notice of revocation, such
Subject Shares shall again become subject to all the
restrictions of this Section 4(b).
(c) Drag-Along Right.
(i) If at any time and from time to time after the date
of this Agreement, Brightpoint wishes to Transfer in
a bona fide arms' length sale all of its Shares to
any Person or Persons who are not Affiliates of
Brightpoint (for purposes of this Section 4(c), the
"Proposed Transferee"), Brightpoint shall have the
right (for purposes of this Section 4(c), the
"Drag-Along Right") to require Persequor to sell to
the Proposed Transferee all of the Persequor Shares
for the same per share consideration received by
Brightpoint. Each of Persequor and Brightpoint agrees
to take all steps necessary to enable it to comply
with the provisions of this Section 4(c).
(ii) To exercise a Drag-Along Right, Brightpoint shall
give Persequor: (A) a written
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notice (for purposes of this Section 4(c), a
"Drag-Along Notice") containing (1) the name and
address of the Proposed Transferee and (2) the
proposed purchase price, terms of payment and other
material terms and conditions of the Proposed
Transferee's offer; and (B) a certificate jointly
issued by the Chief Financial Officer and General
Counsel of Brightpoint, Inc. as to the bona fide,
arm's length nature and fair value of the purchase
price with respect to such Transfer.
(iii) Persequor shall thereafter be obligated to sell the
Persequor Shares the subject of such Drag-Along
Notice for the same per share consideration received
by Brightpoint, provided that the sale to the
Proposed Transferee is consummated within ninety (90)
days of delivery of such Drag-Along Notice. If the
sale is not consummated within such period, then
Persequor shall no longer be obligated to sell such
its Shares pursuant to that specific Drag-Along Right
but shall remain subject to the provisions of this
Section 4(c).
(d) Tag-Along Rights. In the event Brightpoint intends to Transfer
any of its Shares (other than Transfers to any of its Affiliates), Brightpoint
shall notify Persequor, in writing, of such Transfer and its terms and
conditions. Within fifteen (15) days of the date of such notice, Persequor shall
notify Brightpoint if it elects to participate in such Transfer. If Persequor so
notifies Brightpoint, Persequor shall have the right to sell, at the same price
and on the same terms as Brightpoint, an amount of the Persequor Shares equal to
the number of Shares the third party actually proposes to purchase multiplied by
a fraction, the numerator of which shall be the number of Shares on a fully
diluted basis issued and owned by Persequor and the denominator of which shall
be the aggregate number of Shares on a fully diluted basis issued and owned by
Brightpoint and Persequor.
(e) Other Restrictions on Transfer. Brightpoint may freely
Transfer any of the Shares owned by it to an Affiliate thereof or, subject to
Sections 4(b) and 4(d), any third party, provided that in any such case such
transferee (i) shall be financially capable of fulfilling the obligations of
Brightpoint under this Agreement as determined by Brightpoint in its reasonable
judgment, (ii) agrees to be bound by the provisions of this Agreement (and to
fulfill such obligations of Brightpoint) as if such transferee were an original
signatory hereto and (iii) executes a counterpart to this Agreement.
(f) Additional Understandings. The Company and each of the
Investors acknowledge and agree that no public market now exists for the Shares,
and that there may never be a public market for the Shares. Persequor
acknowledges and agrees that:
(i) the Persequor Shares cannot be sold,
transferred or otherwise disposed of, except
in accordance with and subject to the terms
and conditions of this Agreement;
(ii) it has had the opportunity to ask questions
to representatives of Brightpoint and the
Company with respect to the Company and its
financial condition as of the Effective Date
and any such questions have been answered to
the full satisfaction of Persequor;
(iii) it has such knowledge and expertise in
financial and business matters that it is
capable of evaluating the merits and risks
involved in an investment in the Sale
Shares;
(iv) it understands that it is the responsibility
of Persequor to satisfy itself as to the
full observance of the laws of any relevant
territory outside India in connection with
the
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purchase of the Sale Shares, including
obtaining any required governmental or other
consents or observing any other applicable
formalities;
(v) its financial condition is such that it is
under no need as of the Effective Date, in
order to satisfy any existing or
contemplated agreement, understanding or
indebtedness, to dispose of any portion of
the Sale Shares which it is purchasing
hereunder; and
(vi) it is able to bear the economic risk of an
investment in the Sale Shares, including,
without limiting the generality of the
foregoing, its probable inability to sell or
transfer the Sale Shares for an indefinite
period of time, except in accordance with
and subject to the terms and conditions set
forth in this Agreement.
5. Right to Issue Equity or Debt and Raise Additional Capital.
(a) The parties acknowledge and agree that the Company may at any
time after the Effective Date on such terms as shall be approved by a majority
of the Board:
(i) subject to Section 5(b), issue equity or debt
securities or instruments of any kind (the term
"securities or instruments" shall include for these
purposes any warrants, options or other rights to
acquire equity securities and debt securities
convertible into equity securities) of the Company to
third parties who are not Affiliates of Brightpoint
without offering to issue to each Investor a
subscription right to a portion of such securities or
instruments; and/or
(ii) raise additional capital by way of obtaining a loan
to the Company or otherwise, providing guarantees to
third parties for the benefit of the Company, by way
of additional share capital or otherwise;
provided, however, that, nothing set forth in this Section 5 shall in any manner
whatsoever reduce or restrict, or have the effect of reducing or restricting, or
otherwise be prejudicial to, the rights of the Company to issue Class A
Preference Shares only to Brightpoint or any of its Affiliates that agree to be
bound by the provisions of this Agreement in accordance with the Memorandum and
Articles of Association of the Company and the terms and conditions of this
Agreement.
(b) If at any time after the Effective Date, the Company proposes
to issue equity securities of any kind (the term "equity securities" shall
include for these purposes any warrants, options or other rights to acquire
equity securities and debt securities convertible into equity securities) of the
Company (other than the issuance of securities (i) in an initial public offering
or (ii) pursuant to the acquisition of another corporation by the Company by
merger, purchase of substantially all of the assets or other form of
reorganization and other than the issuance of the Class A Preference Shares only
to Brightpoint or any of its Affiliates that agree to be bound by the provisions
of this Agreement in accordance with the Memorandum and Articles of Association
of the Company and the terms and conditions of this Agreement), then, to each of
the Investors, the Company shall:
(A) give written notice setting forth in reasonable
detail (1) the designation and all of the terms and
provisions of the securities proposed to be issued
(the "Proposed Securities"), including, where
applicable, the voting powers, preferences and
relative participating, optional or other special
rights, and the qualifications, limitations or
restrictions thereof and interest rate and maturity;
(2) the price and other terms of the
11
proposed sale of such securities; (3) the amount of
such securities proposed to be issued; and (4) such
other information as the Investors may reasonably
request in order to evaluate the proposed issuance;
and
(B) offer to issue to each such Investor a portion of the
Proposed Securities equal to a percentage determined
by dividing (x) the number of Shares held by such
Investor and issuable to such Investor, assuming
conversion in full of any convertible securities then
held by such Investor, by (y) the total number of
Shares then held by all of the Investors, including
for purposes of this calculation all Shares issuable
upon conversion in full of any then outstanding
convertible securities, if any.
Each such Investor must exercise its purchase rights hereunder within five (5)
days after receipt of such notice from the Company. If all of the Proposed
Securities offered to such Investors are not fully subscribed by such Investors,
the remaining Proposed Securities will be reoffered to the Investor purchasing
its full allotment upon the terms set forth in this Section 5(b), until all such
Proposed Securities are fully subscribed for or until such Investor has
subscribed for all such Proposed Securities which it desires to purchase, except
that such Investor must exercise its purchase rights within five (5) days after
receipt of all such reoffers. To the extent that the Company offers two (2) or
more securities in units, the Investors must purchase such units as a whole and
will not be given the opportunity to purchase only one of the securities making
up such unit.
Upon the expiration of the offering periods described above, the Company will be
free to sell such Proposed Securities that the Investors have not elected to
purchase during the ninety (90) days following such expiration on terms and
conditions no more favorable to the purchasers thereof than those offered to
such Investors. Any Proposed Securities offered or sold by the Company after
such ninety (90) day period must be reoffered to the Investors pursuant to this
Section 5(b).
The election by an Investor not to exercise its subscription rights under this
Section 5(b) in any one instance shall not affect its rights (other than in
respect of a reduction in its percentage holdings) as to any subsequent proposed
issuance. Any sale of such securities by the Company without first giving the
Investors the rights described in this Section 5(b) shall be void and of no
force and effect.
In the event Brightpoint exercises any of its subscription rights under this
Section 5(b) and/or any Affiliate of Brightpoint subscribes to any of the
Proposed Securities, directly or indirectly, then Brightpoint is hereby required
to pay for or contribute, and Brightpoint shall promptly pay or contribute
within the period specified in this Section 5(b), on behalf of Persequor any and
all amounts required to enable Persequor to exercise Persequor's subscription
rights under this Section 5(b) (and any Shares subscribed by Persequor pursuant
hereto are hereby referred to as "Persequor's Financed Shares"). For the
avoidance of doubt, such payment or contribution by Brightpoint on behalf of
Persequor is in the nature of a non-refundable payment or contribution from
Brightpoint to Persequor and not a loan and shall be deemed to be a capital
contribution to the equity of the Company made by Persequor.
6. Options.
(a) Persequor Right. On the Put/Call Right Vesting Date and each
anniversary of the Put/Call Right Vesting Date thereafter (each such date shall
be referred to as a "Put/Call Date"), Persequor shall have the right to require
Brightpoint to purchase all of the Persequor Shares at a price as determined
pursuant to Section 6(c) by providing Brightpoint with written notice of its
intention to exercise this option not less than sixty (60) days prior to the
applicable Put/Call Date.
(b) Brightpoint Right.
12
(i) On each Put/Call Date, Brightpoint shall have the
right to purchase all of the Persequor Shares at a
price as determined pursuant to Section 6(c) by
providing Persequor written notice of its intention
to exercise this option not less than sixty (60) days
prior to the applicable Put/Call Date.
(ii) In the event Persequor (i) breaches any of its
material obligations under the Management Agreement,
this Agreement, the BPAL Management Agreement, the
Share Sale and Purchase Agreement or any document,
instrument or agreement contemplated therein other
than solely due to a material breach by any of the
other parties under any of such agreements, documents
or instruments or a force majeure event, and
Persequor persists in such breach notwithstanding at
least thirty (30) days' written notice from
Brightpoint, or (ii) terminates the Management
Agreement without cause, Brightpoint, in
Brightpoint's sole and absolute discretion, shall
have the right to purchase all of the Persequor
Shares at a price as determined pursuant to Section
6(c) less the applicable discount as set forth below
(the "Discount") by providing Persequor further
written notice (the "Section 6(b)(ii) Notice") not
later than one hundred twenty (120) days after the
end of such period. For purposes of this Section
6(b)(ii), the Discount shall be determined in
accordance with the following schedule:
Applicable Discount
-------------------
If the Section 6(b)(ii) Notice is received by Persequor before 30%
the first anniversary of the Effective Date
If the Section 6(b)(ii) Notice is received by Persequor on or 20%
after the first anniversary of the Effective Date but before the
second anniversary of the Effective Date
If the Section 6(b)(ii) Notice is received by Persequor on or 10%
after the second anniversary of the Effective Date
(c) Appraisal Procedure. If Persequor exercises its option to sell
the Persequor Shares to Brightpoint pursuant to Section 6(a), or Brightpoint
exercises its option to purchase the Persequor Shares pursuant to Section 6(b),
the relevant parties shall promptly initiate an Appraisal Proceeding to
determine the value of the Persequor Shares in question.
(d) Closing of Purchase. The closing of any sale-purchase
transaction pursuant to this Section 6 shall take place within thirty (30) days
of the final determination of the value of the Company pursuant to an Appraisal
Proceeding at the office of the Company or such other location as shall be
mutually agreeable and the purchase price shall be paid to Persequor in
immediately available funds in USD at the closing by wire or telegraphic
transfer, or such other means as shall be mutually agreeable. At the closing,
Persequor shall deliver to Brightpoint the certificates evidencing the relevant
Persequor Shares, duly endorsed and in negotiable form with all the requisite
documentary stamps affixed thereto.
7. Financing; Return of and Return on Investment; Distributions.
(a) It is the intent of the Investors that the Company be properly
and adequately capitalized at all times and to have credit facilities from time
to time necessary or appropriate for the business of the Company.
13
In that regard:
(i) Persequor shall not be required to provide any
capital contribution to the equity of the Company or
other credit support of any kind whatsoever (whether
by way of shareholder loans, guarantees or other
facilities), but, if requested by the Board,
Persequor may do so at Persequor's option exercised
in its sole and absolute discretion;
(ii) the parties acknowledge and agree that as of the
Effective Date Brightpoint has made capital
contributions to the equity of the Company in the
amount of USD one million three hundred fifty-two
thousand one hundred thirty one and 87/100
($1,352,131.87), or equivalent (the "Minimum Capital
Contribution"), pro rata with respect to all of the
outstanding Shares (including the Sale Shares, the
contribution for which shall be deemed to have been
made by Persequor); and
(iii) Brightpoint shall provide to the Company financial
support in addition to the Minimum Capital
Contribution if requested by the Board from time to
time (by way of Additional Capital Contributions
through the purchase of Class A Preferred Shares by
it or any of its Affiliates, Shareholder Loans,
guarantees, trade credit, letters of credit, bank
financing and other facilities).
(b) A loan from a shareholder to the Company shall be denominated
in (i) Indian Rupees and bear interest at the Interest Rate (Rupees) plus two
and one-half percent (2.5%), or (ii) USD and bear interest at the Interest Rate
(USD) plus two and one-half percent (2.5%), and shall be made on and subject to
the terms and conditions set forth on Attachment A, unless otherwise approved by
all of the shareholders of the Company (individually, a "Shareholder Loan"). In
the event any guaranty, letter of credit or similar instruments of financial
accommodation provided to or for the benefit of the Company by Brightpoint or
any of its Affiliates is invoked, then any amounts paid thereunder by
Brightpoint or any of its Affiliates shall be treated as a Shareholder Loan. All
Shareholder Loans shall be in accordance with Indian law and regulations,
including, but not limited to, the regulations of the Reserve Bank of India.
(c) Except as provided in this Section 7 and the Memorandum and
Articles of Association of the Company, no Investor is entitled to a withdrawal
or return of or on its Capital Contributions to the Company, but each shall look
solely to distributions from the Company for such purpose.
(d) The amount, if any, of Available Cash shall be determined by
the Board from time to time (which each Investor hereby acknowledges and agrees
is within the power and right of the Board to so determine in its absolute
discretion) and may only be distributed in the following order:
(i) to the lenders of Shareholder Loans pro rata on their
respective Shareholder Loans (for unpaid principal
and interest) made to the Company; then
(ii) to each of Brightpoint or its Affiliates owning Class
A Preference Shares, as the case may be, pro rata on
a per Class A Preference Share basis for its Stated
Return on Class A Preference Shares; then
(iii) to each of Brightpoint or its Affiliates owning Class
A Preference Shares, as the case may be, pro rata on
a per Class A Preference Share basis for return of
its Capital Contributions with respect to its Class A
Preference Shares to redeem such Class A Preference
Shares once paid in full; then
14
(iv) the balance to the shareholders of the Company pro
rata on a per Share basis (excluding the Class A
Preference Shares).
(e) In the event of a liquidation of the Company, Liquidation
Proceeds shall be distributed in the following order of priority:
(i) to the payment of debts and liabilities of the
Company (including to the lenders of Shareholder
Loans pro rata on their respective Shareholder Loans
(for unpaid principal and interest) made to the
Company to the extent otherwise permitted by law) and
the expenses of liquidation; then
(ii) to the setting up of such reserves as required or
authorized by law to wind up the Company's affairs as
the Board may deem necessary or appropriate for any
disputed, contingent or unforeseen liabilities or
obligations of the Company; then
(iii) to each of Brightpoint or its Affiliates owning Class
A Preference Shares, as the case may be, pro rata on
a per Class A Preference Share basis, for its accrued
but unpaid Stated Return and unreturned Capital
Contributions with respect to its Class A Preference
Shares to redeem such Class A Preference Shares; then
(iv) to the shareholders of the Company for their
unreturned Capital Contributions on their Shares
(excluding the Class A Preference Shares) pro rata;
then
(v) to the shareholders of the Company pro rata on a per
Share basis (excluding the Class A Preference
Shares).
8. Voting. While this Agreement remains in force, the Investors agree that
the following matters in relation to the Company and any of its subsidiaries
from time to time shall require, and shall only be implemented upon by the
Company after first obtaining, the unanimous approval of the Board or of the
shareholders of the Company:
(a) except in accordance with Section 5, any increase or decrease
in the authorized Shares or capital of the Company, any
creation or issuance of any Shares or the grant of options,
warrants, bonds, notes or rights to subscribe for or purchase
any such Shares or other securities convertible or
exchangeable into such Shares, in any case having a material
and adverse effect on the value of any of the Shares;
(b) any alterations or changes to the rights, preferences or
privileges of the Shares having a material and adverse effect
on the value of any of the Shares;
(c) any sale or disposal or other transfer of all or substantially
all of the assets of the Company in one (1) transaction or
series of related transactions;
(d) any consolidation, amalgamation or merger of the Company with
any other company, entity or concern having a material and
adverse effect on the value of any of the Shares;
(e) dissolution, liquidation or winding-up of the Company, or the
filing for bankruptcy, making an assignment for the benefit of
creditors, or the making of an administration order with
respect to the Company;
15
(f) changing the legal form of the Company, except in connection
with an initial public offering;
(g) any amendment of the Memorandum or Articles of Association of
the Company having a material and adverse effect on the value
of any of the Shares or which in any manner reduces or
restricts or would have the effect of reducing or restricting,
or otherwise be prejudicial to, the rights of Persequor or
increases or would have the effect of increasing the
obligations of Persequor; or
(h) subject to the foregoing restrictions, entry into any lease,
agreement, contract, arrangement, project or other transaction
with any shareholder, director or officer of the Company or an
Affiliate of a shareholder, director or officer, and any
waiver or variation of any terms of any such lease, agreement,
contract, arrangement, project or other transaction, except
for such leases, agreements, contracts, arrangements, projects
or other transactions expressly contemplated by or authorized
pursuant to this Agreement or the Management Agreement.
9. Noncompetition. To protect the value of the Business, each party hereby
acknowledges and agrees that the covenants given in this Section are in
consideration of the execution of this Agreement and that it will benefit from
the promises contained in this Agreement. Each Investor hereby agrees that
during the Restricted Period neither it, nor any of its Affiliates (whether now
existing or hereafter acquired or created) will, directly or indirectly (whether
through subsidiaries, joint ventures or otherwise), individually or on behalf of
any third party, as an employer, proprietor, lender, lessor, partner,
shareholder, stockholder, investor, director, consultant, distributor, agent or
otherwise, in any manner whatsoever carry on any Competitive Business in the
Territory; provided, however, that the performance of the Services (as defined
in the Management Agreement) by Persequor or its Affiliates under the Management
Agreement, the business of BPAL and the performance of the Services (as defined
in the BPAL Management Agreement) by Persequor or its Affiliates under the BPAL
Management Agreement shall not be subject to this restriction.
10. Interpretation of this Agreement.
(a) Good Faith. The parties shall deal with each other in good
faith at all times.
(b) Accounting Principles. When the character or amount of any
asset or amount of any asset or liability or item of income or expense is
required to be determined or any consideration or other accounting computation
is required to be made for the purposes of this Agreement, this shall be done in
accordance with GAAP at the time in effect, to the extent applicable, except
where such principles are inconsistent with the requirements of this Agreement.
(c) Directly or Indirectly. When any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(e) Arbitration. Any dispute arising out of or in connection with
this Agreement and the matters contemplated therein shall be settled amicably
between the parties hereto. In the event that a dispute cannot be settled
amicably, the parties hereby agree that such dispute shall be finally settled by
arbitration, which shall be conducted in London, England in the English language
under the rules of the London Court of International Arbitration ("LCIA"), in
the manner set forth below.
16
(i) The matter shall be referred to one (1) arbitrator to
be agreed upon by the parties in question, but:
(A) if there are only two (2) parties to the
dispute and such parties are unable to agree
as to the appointment of the arbitrator
within fifteen (15) days of either party
giving notice of reference to arbitration
each such party within thirty (30) days of
such notice shall appoint one (1) arbitrator
and the two (2) arbitrators thus appointed
shall agree upon a third arbitrator; and if
a party fails to appoint an arbitrator
within such thirty (30) days, or if the two
(2) arbitrators cannot agree upon the
appointment of a third arbitrator within
fifteen (15) days from the date on which was
appointed the later of the two (2)
arbitrators, such arbitrator or third
arbitrator, as the case may be, shall be
appointed by application of either party to
the President for the time being of the
LCIA, which appointment shall be final and
binding on the parties in question; or
(B) if there are more than two (2) parties to
the dispute and such parties are unable to
agree as to the appointment of the
arbitrator within fifteen (15) days of any
party giving notice of reference to
arbitration, then any party may, by
application to the LCIA, have the matter
referred to a panel of three (3) arbitrators
appointed by the President for the time
being of the LCIA, which appointment shall
be final and binding on the parties in
question.
(ii) The award made by the sole arbitrator, all three (3)
arbitrators, or a majority thereof, as the case may be, shall be final
and binding on the parties and may be enforced in any court of
competent jurisdiction.
(iii) Notwithstanding any provision to the contrary in this
Agreement, this Section 10(e) shall survive the termination of this
Agreement or any other provision hereof, and upon such event shall take
effect as an independent arbitration agreement.
(f) Injunctive Relief. The Company and the Investors hereby
declare that it is impossible to measure in money the damages which will accrue
to the parties hereto by reason of the failure of any Investor to perform any of
its obligations set forth in Sections 4, 7, 8 or 9. Therefore, the Company and
the Investors shall have the right to specific performance of such obligations,
and if any party hereto shall institute any action or proceeding to enforce the
provisions hereof, each of the Company and the Investors hereby waives the claim
or defense that the party instituting such action or proceeding has and adequate
remedy at law.
(g) Section Headings. The headings of the sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(h) Conflict. Except as prohibited by applicable law, to the
extent that the provisions of the Memorandum and Articles of Association of the
Company conflict with any provision of this Agreement, the provisions of this
Agreement shall control.
11. Miscellaneous.
(a) Termination. This Agreement shall terminate on the earlier to
occur of (i) the date on which each of the Investors shall have agreed in
writing or (ii) the tenth anniversary of the Effective Date.
17
(b) Notices. Any notice required to be given under this Agreement
shall be deemed duly served if sent by universally recognized international
overnight air courier service or served by hand delivery or by facsimile
transmission to the addresses provided below or to such other address as may
have been last notified in writing by or on behalf of the relevant party to the
other parties hereto. Any such notice shall be deemed to be served (i) if sent
by international courier, four (4) business days after delivery to the courier
service, or (ii) if hand delivered at the time when left at the address of the
party to be served or, if served by facsimile transmission, when sent. In
proving service it shall be sufficient, in the case of service by facsimile
transmission, to prove that the transmission was confirmed as sent by the
originating machine.
(A) if to the Company:
Brightpoint India Private Limited
c/o Singhania & Partners
B-92 Himalaya House, 23
Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx 000 000, Xxxxx
Facsimile: x00.00.0000.0000
Attention: Xxxxxxxx Xxxxxxxxx
and to:
Brightpoint, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: x0.000.000.0000
Attention: General Counsel
(B) if to Brightpoint to:
c/o Brightpoint, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: x0.000.000.0000
Attention: General Counsel
(C) if to Persequor to:
Persequor Limited
c/o Brightpoint Middle East FZE
Warehouse b3 & b4
X.X. Xxx 00000 Xxxxx Airport Free Zone
Dubai, U.A.E.
Facsimile: x000.0.000.0000
Attention: Managing Director
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto.
18
(d) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto relating to the
subject matter hereof and supersede all prior agreements or understandings with
respect to the subject matter hereof among such parties. This Agreement may be
amended, and the observance of any term of this Agreement may be waived, with
(any only with) the written consent of each of the Investors.
(e) Partial Invalidity. If any paragraph, provision, or clause
thereof in this Agreement shall be found or be held to be invalid or
unenforceable in any jurisdiction in which this Agreement is being performed,
such paragraph, provision, or clause shall be severable and of no force and
effect, the remainder of this Agreement shall be valid and enforceable and the
parties hereto shall negotiate, in good faith, a substitute, valid and
enforceable provision which most nearly effects the parties' intent in entering
into this Agreement.
(f) Headings. Titles and headings to Sections herein are inserted
for convenience of reference only, and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
(g) Further Assurances. From time to time, as and when requested
by a party hereto, the other parties will execute and deliver, or cause to be
executed and delivered, all such documents and instruments as may be reasonably
necessary to consummate the transactions contemplated by this Agreement.
(h) Counterparts. This Agreement may be executed in two (2) or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one (1) and the same agreement.
19
IN WITNESS WHEREOF, the parties hereto have executed this Shareholders
Agreement as of the date first above written.
BRIGHTPOINT INDIA PRIVATE LIMITED
By: /s/ Xxxxxx X. Xxxxx
---------------------
Name: Xxxxxx X. Xxxxx
Title: Director
BRIGHTPOINT HOLDINGS B.V.
By: /s/ Xxxxxx X. Xxxxx
---------------------
Name: Xxxxxx X. Xxxxx
Title: Director
PERSEQUOR LIMITED
By: /s/ Tor Malmros
------------------
Name: Tor Malmros
Title: Director
