exv10w4






Exhibit 10.4




AGREEMENT OF PURCHASE AND SALE




     This Agreement of Purchase and Sale (the “Purchase Agreement”) is made and entered into on
this 11th day of January, 2010, by and among Brightpoint, Inc. (“Brightpoint”) and Partner Escrow
Holding A/S (“PE Holding”). Brightpoint and PE Holding are sometimes hereinafter referred to as the
“Parties”.



     WHEREAS, Brightpoint, NC Telecom Holding A/S (f/k/a Dangaard Holding A/S) (“NC Holding”) and
Nordic Wholesale Services S.a.r.l., the beneficial owner of NC Holding (“Nordic Luxco”) executed a
Settlement Agreement dated as of October 1, 2009 (the “Settlement Agreement”) pursuant to which,
among other things, Brightpoint purchased from NC Holding 3,000,000 shares of Brightpoint common
stock, $.01 par value per share (“Common Stock”) from NC Holding, and permitted NC Holding to
transfer all of its remaining shares of Brightpoint Common Stock to certain affiliates of NC
Holding, as more fully set forth in the Settlement Agreement;



     WHEREAS, on November 13, 2009 NC Holding transferred 9,187,164 shares of Brightpoint Common
Stock (the “Shares”) held by NC Holding to PE Holding; and



     WHEREAS, Brightpoint now desires to purchase, and PE Holding desires to sell, all of such
Shares pursuant to the terms and conditions set forth herein;



     NOW, THEREFORE, in consideration of the above premises and for valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the Parties agree as follows:



     1. Closing Deliveries.



     On the date which is four (4) business days after the date hereof (Friday January 15, 2010):



     a. PE Holding shall (i) cause American Stock Transfer & Trust Company, the transfer agent of
Brightpoint (the “Transfer Agent”), to deliver the 9,187,164 Shares, all of which are held in book
entry form, to Brightpoint; (ii) cause the Transfer Agent to deliver such additional number of
shares of Brightpoint Common Stock (all of which are held in book entry form) equal to the
aggregate number of shares offered for sale to Brightpoint by those individuals set forth on
Schedule A attached hereto, at Six Dollars and Twenty Cents (U.S. $6.20) per share and who have
executed and timely delivered the documents set forth in Section 1 b.ii below; (iii) cause the
delivery of an opinion of counsel from Accura, reasonably



 









 





satisfactory to Brightpoint, with respect to the due authorization of this Purchase Agreement
by PE Holding; and (iv) cause the delivery of an incumbency certificate, reasonably satisfactory to
Brightpoint, of Nordic Capital Fund VI, (consisting of Nordic Capital VI Alpha, L.P., Nordic
Capital VI Beta L.P., Nordic Capital VI Limited, NC VI Limited and Nordic Industries Limited)
indicating those officers authorized to sign on behalf of each of such entities.




     b. Brightpoint shall deliver (i) to PE Holding the sum of Fifty Six Million, Nine Hundred
Sixty Thousand, Four Hundred Sixteen Dollars and Eighty Cents (U.S. $56,960,416.80) in cash, (which
represents a purchase price of Six Dollars and Twenty Cents (U.S. $6.20) per share of Brightpoint
Common Stock) by wire transfer of immediately available funds to an account to be designated in
writing by PE Holding and (ii) to each of those individuals on Schedule A attached hereto who have
executed and delivered to Brightpoint, not less than two (2) business days after the date hereof,
an agreement of purchase and sale in substantially the same form as this Agreement covering the
shares offered to Brightpoint; the sum equal to product of (A) the number of shares of Brightpoint
Common stock offered to Brightpoint by such individual multiplied by (b) Six Dollars and Twenty
Cents (U.S. $6.20), by wire transfer of immediately available funds to an account to be designated
in writing by each such individual.



     2. Representations and Warranties.



     a. By the Parties.


          Each of the Parties hereto represents and warrants to the other that it was represented by
counsel licensed to practice in the courts of the State of New York and is each satisfied with such
representation.



     b. By Brightpoint.


          i. Brightpoint is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.


          ii. This Purchase Agreement is a legal, valid and binding obligation of Brightpoint,
enforceable according to its terms, and has been executed by a duly authorized representative of
Brightpoint.


          iii. Brightpoint, in making the decision to enter into this Purchase Agreement, has not relied
upon any representations, other than as set forth herein, or assurances from PE Holding, any of its
affiliates, officers, directors or employees or any other representatives or agents of PE Holding.



 









 







          iv. Brightpoint has all corporate power and authority to execute this Purchase Agreement.
This Purchase Agreement has been validly authorized, executed and delivered by Brightpoint, and no
further corporate actions are required on the part of Brightpoint to authorize the execution and
delivery of this Purchase Agreement. The execution, delivery and performance of this Purchase
Agreement by Brightpoint does not and will not conflict with, violate or cause a breach of,
constitute a default under, or result in a violation of (i) the organizational documents of
Brightpoint, (ii) any agreement, contract or instrument to which Brightpoint is a party which would
prevent Brightpoint from performing its obligations hereunder, or (iii) any law, statute, rule or
regulation to which Brightpoint is subject.


          v. Brightpoint acknowledges that it has had the opportunity to review this Purchase Agreement
and the transactions contemplated by this Purchase Agreement with its own legal counsel and
investment and tax advisors. Brightpoint is not relying on any statements or representations of PE
Holding or any of its affiliates, representatives or agents for legal, tax or investment advice
with respect to this Purchase Agreement or the transactions contemplated by the Purchase Agreement.



     c. By PE Holding.


          i. PE Holding is duly organized, validly existing and in good standing (in such jurisdictions
where such status is recognized) under the laws of the jurisdiction of its organization.


          ii. This Purchase Agreement is a legal, valid and binding obligation of PE Holding,
enforceable according to its terms, and has been executed by a duly authorized representative of PE
Holding.


          iii. PE Holding is sophisticated in financial matters and each such entity is able to evaluate
the risks and benefits attendant to the sale of the Shares to Brightpoint.


          iv. PE Holding, in making the decision to sell the Shares to Brightpoint, has not relied upon
any oral or written representations or assurances from Brightpoint, or any of Brightpoint’s
affiliates, officers, directors or employees or any other representatives or agents of Brightpoint.
PE holding has had access to all of the filings made by Brightpoint with the United States
Securities and Exchange Commission (“SEC”), pursuant to the Securities Exchange Act of 1934, as
amended, and the Securities Act of 1933, as amended, in each case to the extent available publicly
via the SEC’s Electronic Data Gathering, Analysis and Retrieval system.



 









 







          v. PE Holding has all corporate, limited liability company or partnership power and authority,
as appropriate, to execute this Purchase Agreement. This Purchase Agreement has been validly
authorized, executed and delivered by PE Holding, and no further corporate, limited liability
company or partnership actions, as appropriate, are required on the part of PE Holding to authorize
the execution and delivery of this Purchase Agreement. The execution, delivery and performance of
this Purchase Agreement by PE Holding does not and will not conflict with, violate or cause a
breach of, constitute a default under, or result in a violation of (i) the organizational documents
of PE Holding, (ii) any agreement, contract or instrument to which PE Holding is a party which
would prevent PE Holding from performing its obligations hereunder, or (iii) any law, statute, rule
or regulation to which PE Holding is subject.


          vi. PE Holding acknowledges that it has had the opportunity to review this Purchase Agreement
and the transactions contemplated by this Purchase Agreement with its own legal counsel and
investment and tax advisors. PE Holding is not relying on any statements or representations of
Brightpoint or any of Brightpoint’s respective affiliates, representatives or agents for legal, tax
or investment advice with respect to this Purchase Agreement or the transactions contemplated by
the Purchase Agreement.


          vii. PE Holding is the beneficial owner of the Shares and will transfer to Brightpoint good
and marketable title to the Shares, free and clear of any liens, claims, security interests,
options charges or any other encumbrance whatsoever.



     3. Acknowledgements; Waiver; Indemnification.



     PE Holding (i) acknowledges that Brightpoint may possess or have access to material non-public
information which has not been communicated to PE Holding; (ii) hereby waives any and all claims,
whether at law, in equity or otherwise, that it may now have or may hereafter acquire, whether
presently known or unknown, against Brightpoint or any of its officers, directors, employees,
agents, affiliates, subsidiaries, successors or assigns relating to any failure to disclose any
non-public information in connection with the sale of the Shares pursuant to this Purchase
Agreement, including without limitation, any claims arising under Rule 10b-(5) of the Securities
and Exchange Act of 1934; and (iii) is aware that Brightpoint is relying on the truth of the
representations set forth in Sections 2.a and 2.c of this Purchase Agreement and the foregoing
acknowledgement and waiver in clauses 3.i and 3.ii above, respectively, in connection with the
transactions contemplated by this Purchase Agreement.



 









 





     4. Miscellaneous Provisions.



     a. This Purchase Agreement sets forth the entire agreement among the Parties with respect to
its subject matter and, other than as specifically amended or modified herein, all other terms and
conditions of all other agreements between the Parties, remain in full force and effect. Nothing
in this Purchase Agreement shall be deemed to amend, modify, waive or alter the Underwriting
Agreement dated July 15, 2009 by and among Brightpoint, NC Holding and Deutsche Bank Securities,
Inc.



     b. This Purchase Agreement may not be changed, modified or amended except by a written
instrument signed by the Parties.



     c. This Purchase Agreement may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
Signature pages may be exchanged by e-mail or facsimile, and each signature page so exchanged shall
be considered an original.



     d. This Purchase Agreement shall be binding on the Parties and their respective predecessors,
successors, assigns, parents, subsidiaries, affiliates, divisions, groups, and present and former
officers, directors, and employees.



     e. Unless Brightpoint instructs otherwise in writing, all notices to Brightpoint regarding
this Purchase Agreement shall be delivered to:



	 	 	 	 	 	 	 

	 

	 	 	 	 	 	Brightpoint, Inc.
	 

	 	 	 	 	 	7635 Interactive Way, Suite 200
	 

	 	 	 	 	 	Indianapolis, Indiana 46278 USA
	 

	 	 	 	 	 	ATTN: Steven E. Fivel
	 

	 	 	 	 	 	Executive Vice President, General Counsel & Secretary
	 

	 	 	 	 	 	Tel: (317)707-2520
	 

	 	 	 	 	 	E-mail: steve.fivel@brightpoint.com
	 
	 	 	 	 	 	 
	 

	 	With a copy to:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Blank Rome LLP
	 

	 	 	 	 	 	405 Lexington Avenue
	 

	 	 	 	 	 	New York, New York 10174
	 

	 	 	 	 	 	ATTN: Robert J. Mittman
	 

	 	 	 	 	 	Tel: (212) 885-5555
	 

	 	 	 	 	 	E-mail: rmittman@blankrome.com






     f. Unless PE Holding instructs otherwise in writing, all notices to PE Holding regarding this
Purchase Agreement shall be delivered to:



 









 





	 	 	 	 	 	 	 

	 

	 	 	 	 	 	Partner Escrow Holding A/S
	 

	 	 	 	 	 	Frueskovvej 6
	 

	 	 	 	 	 	Kelstrupskov
	 

	 	 	 	 	 	6340 Krusaa
	 

	 	 	 	 	 	Denmark
	 

	 	 	 	 	 	Attn. Hans Peter Alnor
	 

	 	 	 	 	 	Tel: +45 2225 6000
	 

	 	 	 	 	 	Email: hp@alnor.dk
	 
	 	 	 	 	 	 
	 

	 	With a copy to:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Latham & Watkins LLP
	 

	 	 	 	 	 	885 Third Avenue
	 

	 	 	 	 	 	New York, New York 10022
	 

	 	 	 	 	 	ATTN: David A. Kurzweil
	 

	 	 	 	 	 	Tel: (212) 906-1200
	 

	 	 	 	 	 	E-mail: david.kurzweil@lw.com






     g. Unless otherwise indicated or agreed to in writing by the Party to receive the delivery of
any document, as used in this Purchase Agreement “deliver” and “delivery” shall mean transmission
by overnight courier and e-mail.



     h. This Purchase Agreement shall be deemed to have been drafted jointly by the Parties.



     5. Governing Law; Jurisdiction and Process




THIS AGREEMENT IS MADE UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY
THEREIN, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between
or among any of the parties, whether arising out of this Agreement, any of the agreements
contemplated hereby or otherwise, (a) each of the parties irrevocably consents to the
exclusive jurisdiction and venue of the federal and state courts located in New York, New
York, (b) if any such action is commenced in a state court, then, subject to applicable law,
no party shall object to the removal of such action to any federal court located in New
York, New York, (c) each of the parties irrevocably waives the right to trial by jury, (d)
each of the parties irrevocably agrees to designate a service company located in the United
States as its agent for service of process and consents to service of process by first class
certified mail, return receipt



 









 






requested, postage prepaid, to the address at which such party is located, and (e) the
prevailing parties shall be entitled to recover their reasonable attorneys’ fees, costs and
disbursements from the other parties (in addition to any other relief to which the
prevailing parties may be entitled).



[Signature pages follow]




 









 








IN WITNESS WHEREOF, the Parties have duly authorized the execution and delivery of this Purchase
Agreement as of the date written below.




Dated: January 11, 2010




	 	 	 	 	 
	 	BRIGHTPOINT, INC.

7635 Interactive Way, Suite 200

Indianapolis, Indiana 46278

 	 
	 	By:  	/s/ Steven E. Fivel
 	 
	 	 	 	 
	 	PARTNER ESCROW HOLDING A/S

Frueskovvej 6

Kelstrupskov

6340 Krusaa

Denmark

Attn. Hans Peter Alnor

Tel: +45 2225 6000

Email: hp@alnor.dk

 	 
	 	By:  	/s/ Michael Haaning
 	 
	 	 	 	 
	 	 	 	 



 









 








Schedule A




	 	 	 	 	 	 	 	 	 

	Jan Gunnar Næss
	 	 	310,936	 	 	 	 	 
	Thorleif Krarup
	 	 	189,745	 	 	 	 	 
	Otto Kalvø
	 	 	139,921	 	 	 	 	 
	Carsten Christiansen
	 	 	34,617	 	 	 	 	 
	Torben Pedersen
	 	 	34,617	 	 	 	 	 
	Steen Høgh
	 	 	33,347	 	 	 	 	 
	Ulrik Egeskov
	 	 	14,606	 	 	 	 	 
	Anders Andresen
	 	 	13,339	 	 	 	 	 
	Erik Rasmussen
	 	 	13,339	 	 	 	2 day put option on USD 6.20/share
	Christian Østergaard
	 	 	7,938	 	 	 	 	 
	Stig Vendelboe
	 	 	6,002	 	 	 	 	 
	Thomas Breth
	 	 	6,002	 	 	 	 	 
	Henning Krogh
	 	 	3,000	 	 	 	 	 
	Atrium
	 	 	2,323	 	 	 	 	 
	Ib Gonge Hansen
	 	 	1,267	 	 	 	 	 
	Ulrik Bach-Andersen
	 	 	1,267	 	 	 	 	 
	Søren Birk
	 	 	570