EXHIBIT 10.7
Dated 25th April 2002
BRIGHTPOINT INTERNATIONAL (ASIA PACIFIC) PTE. LIMITED
AND
CHINATRON GROUP HOLDINGS LIMITED
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SECOND AMENDING AGREEMENT
IN RELATION TO
SALE AND PURCHASE AGREEMENT
FOR UP TO 80% OF THE SHARE CAPITAL
OF BRIGHTPOINT CHINA LIMITED
DATED 2ND OCTOBER 2001
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[XXXXXXX XXXXXX & MASTER LOGO]
THIS AGREEMENT is made on 25th April 2002
BETWEEN
(1) BRIGHTPOINT INTERNATIONAL (ASIA PACIFIC) PTE. LIMITED, a company
incorporated in Singapore and having its registered office at Xxxxxxxxx &
Xxxxxxxxxx, 00 Xxxxxxx Xxxxx #00-00, Xxxxxxxx Xxxxxx, Xxxxxxxxx 000000 (the
"VENDOR"); and
(2) CHINATRON GROUP HOLDINGS LIMITED, a company incorporated in Hong Kong and
having its registered office at Xxxxx 000, Xxxx Xxxxx'x Xxxx, Xxxxxxx, Xxxx
Xxxx (the "PURCHASER").
BACKGROUND
(A) Pursuant to a sale and purchase agreement for up to 80% of the share
capital of Brightpoint China Limited (the "COMPANY") dated 2nd October 2001
and made between the parties hereto (the "SALE AND PURCHASE AGREEMENT") (as
amended by an amending agreement dated 18th January 2002 (the "FIRST
AMENDING AGREEMENT")), the Vendor agreed to sell and the Purchaser agreed
to purchase the Sale Shares (being 5,000 Shares and representing 50% of the
entire issued share capital of the Company). Completion of the sale and
purchase of the Sale Shares took place on 18th January 2002.
(B) In addition, and also pursuant to the Sale and Purchase Agreement, the
Vendor granted to the Purchaser an option to purchase the Option Shares
(being 3,000 Shares) and any additional bonus Shares (to which the Vendor
may become entitled by reason of being the holder of the Option Shares).
(C) Immediately prior to the signing of this Agreement, one additional Share
was issued to the Vendor to reflect a capital contribution of HK$98,660,452
made by the Vendor to the Company.
(D) The Vendor and Purchaser have now agreed that the definition of "Option
Shares", "Exercise Price" and "Option Preference Shares" be deleted and
replaced with revised definitions of "Amended Option Shares", "Amended
Exercise Price" and "Amended Option Preference Shares" (respectively) and
that the option (as amended) contained in Clause 8.1 of the Agreement be
exercised immediately following signing of this Agreement to the intent and
effect that (i) the Purchaser shall be the owner of the entire share
capital of the Company (ii) the Vendor shall be issued an enhanced number
of fully paid Class B Preference Shares of par value US$0.01 each in the
capital of the Purchaser and (iii) Option Completion shall take effect
immediately following the signing of this Agreement, without the need for
the Vendor to serve an Exercise Notice.
BY WHICH IT IS AGREED as follows:-
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1. Terms and expressions used in this Agreement (including the Recitals)
shall, unless inconsistent with the context, amended by this Agreement or
otherwise specifically defined, have the same meanings as used in the Sale
and Purchase Agreement.
2. The definitions of "Exercise Price", "Option Preference Shares" and "Option
Shares" shall be deleted from clause 1.1 of the Sale and Purchase Agreement
and replaced by the following:-
""Amended Exercise Price" US$11,000,000 to be satisfied by the
issue of the Amended Option Preference
Shares;
"Amended Option Preference fully paid Class B Preference Shares
Shares" of par value US$0.01 each in the capital
of the Purchaser which will, at the date
of their issue, have a redemption value
(exclusive of redemption premium) of
US$11,000,000 and would convert into 11%
of the fully diluted capital of the Purchaser
at the date of issue, to be issued by the
Purchaser on the same terms as the
Consideration Preference Shares;
"Amended Option Shares" 5,001 Shares;"
and any references in the Sale and Purchase Agreement to "Exercise Price",
"Option Preference Shares" and "Option Shares" shall be construed as
references to "Amended Exercise Price", "Amended Option Preference Shares"
and "Amended Option Shares" accordingly.
3. The following definitions shall be inserted into clause 1.1 of the Sale and
Purchase Agreement:-
""Brightpoint China the shareholders agreement dated 18th
Shareholders' Agreement" January 2002 and made between (1) the Vendor,
(2) the Purchaser and (3) the Company;
"Liability Sharing the liability sharing agreement dated 18th
Agreement" January 2002 and made between (1) the Vendor,
(2) the Purchaser, (3) Argo II: The Wireless-Internet
Fund Limited Partnership, (4) Techtronic Holdings
Limited, (5) Xxxx Xxxxxxx Xxxxxxx-Xxxxxx and (6) Xxxxx
Xxx Kong, Xxxx;
"License Agreement" the license agreement dated 18th January 2002 and
made between (1) Brightpoint, Inc. and (2) the Company;"
4. An Exercise Notice shall be deemed to have been given by the Purchaser and
accepted by the Vendor and Option Completion shall occur immediately
following signature of this Agreement.
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5. Clause 8.2 of the Sale and Purchase Agreement (which was amended by the
First Amending Agreement) shall be deleted and replaced by the following
clause 8.2:-
"8.2 The Vendor shall on exercise of the Option sell the Amended Option
Shares and the Purchaser shall purchase the Amended Option Shares,
free from all rights of pre-emption, options, liens, claims, equities,
charges, mortgages, pledges and encumbrances or third party rights of
whatsoever nature and with all rights attached, accrued or accruing or
becoming attached thereto on and after date of such exercise at the
Amended Exercise Price, payable not in cash but instead by the issue
of the Amended Option Preference Shares upon Option Completion."
6. Clause 8.6 of the Sale and Purchase Agreement shall be amended by inserting
the additional following sub-clauses:-
"(d) to the extent not completed prior to this Agreement, the Vendor shall
subscribe for, and the parties shall procure that the Company shall
issue, one Share to the Vendor in return for the capital contribution
of an amount of HK$98,660,452 previously advanced by the Vendor to the
Company;
(e) the Vendor shall deliver to the Purchaser letters of resignations of
the Vendor appointed directors and letters of resignation of the
secretary, and other officers of each of the Company and the
Subsidiaries in each case acknowledging that they have no outstanding
claims whether for compensation for loss of office or otherwise
howsoever;
(f) the Vendor shall deliver to the Purchaser, in respect of each of the
Subsidiaries[, share certificates in respect of all issued shares
together with instruments of transfer and declarations of trust (duly
stamped, where appropriate) in respect of any shares which are held by
nominees;] and in respect of the Company and each of the Subsidiaries
the statutory and minutes books (which shall be written up to but not
including the date of Option Completion), share certificate books;
common seal, certificate of incorporation, business registration
certificate, together with copies of the memorandum and articles of
association, cheque books, books of account (all complete and written
up to Option Completion), copies of all tax return(s) filed and
related correspondence (if any), all contracts (if any) to which the
Company and any Subsidiary is a party and all other documents and
records of the Company and the Subsidiaries;
(g) the Vendor and the Purchaser shall enter into an agreement with each
other and with the Company terminating the Brightpoint China
Shareholders' Agreement (and they shall procure that the Company shall
also enter into such agreement);
(h) the Vendor and the Purchaser shall enter into an agreement with each
other and with the other parties terminating the Liability Sharing
Agreement (and the Purchaser shall procure that all other parties
shall also enter into such agreement);
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(i) the Purchaser shall procure that replacement facilities be provided in
respect of the Company so as to allow a release and withdrawal of and
shall return to the Vendor at Option Completion (i) the standby letter
of credit provided by ABN AMRO Bank Amsterdam (procured by the Vendor
and referred to in Part A of Schedule 1 to the Liability Sharing
Agreement); and (ii) the standby letter of credit provided by ABN AMRO
Bank N.V. (procured by the Vendor and referred to in Part B of
Schedule 2 to the Liability Sharing Agreement);
(j) the Vendor shall procure that Brightpoint, Inc. shall enter into, and
the Vendor and the Purchaser shall procure that the Company shall
enter into, an agreement terminating the License Agreement.
7. A new clause 8.7 shall be inserted into the Sale and Purchase Agreement as
follows:-
"8.7 The Vendor and the Purchaser shall procure a board meeting to be held
of the Company and each of the Subsidiaries at which resolutions shall
be passed (where appropriate):-
(a) to approve and give effect to all of the matters referred to
above;
(b) to approve the Purchaser and its nominees for registration as the
holders of the Amended Option Shares or in respect of any shares
in any of the Subsidiaries held by nominees;
(c) to accept the resignation of the directors, secretary and other
officers referred to in Clause 8.6(a) above and to appoint as new
directors and secretary of the Company and the Subsidiaries, such
persons as the Purchaser may require, all with effect from the
close of business of the relevant meeting;
(d) to change the authorised signatories of the Company and each of
the Subsidiaries to operate their bank accounts and otherwise
conduct their business as the Purchaser may require; and
(e) to deal with and resolve upon such other matters as the Purchaser
shall reasonably require for the purposes of giving effect to the
provisions of this Agreement."
8. The Sale and Purchase Agreement as amended by this Agreement and the First
Amending Agreement shall continue in full force and effect.
9. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original and such counterparts together shall constitute one and the same
instrument.
10. This Agreement is governed by and shall be construed in accordance with the
laws of Hong Kong.
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EXECUTED by the parties:
SIGNED for and on behalf of ) /s/Xxxxxx X. Xxxxx
BRIGHTPOINT INTERNATIONAL ) Xxxxxx X. Xxxxx
(ASIA PACIFIC) PTE. LIMITED ) Director
Witnessed by:
--------------------------
Name:
Title:
SIGNED for and on behalf of ) /s/ Xxxx Xxxxxxx-Xxxxxx
CHINATRON GROUP HOLDINGS )
LIMITED )
Witnessed by:
--------------------------
Name:
Title:
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