<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): March 14, 1996
BRIGHTPOINT, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-23494 35-1778566
-------- ------- ----------
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
6402 Corporate Drive, Indianapolis, Indiana 46278
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (317)297-6100
Not Applicable
- --------------------------------------------------------------------------------
Former name or former address, if changed since last report
<PAGE>
Item 2. Acquisition and Disposition of Assets
On June 7, 1996 (the "Closing"), the Company consummated the
merger contemplated by Agreement and Plan of Merger, as amended on April 29,
1996 (the "Merger Agreement"), by and among the Company, Brightpoint
Acquisition, Inc., a wholly-owned subsidiary of the Company (the "Subsidiary"),
Allied Communications, Inc., Allied Communications of Florida, Inc., Allied
Communications of Georgia, Inc., Allied Communications of Illinois, Inc., Allied
Communications of Puerto Rico, Inc. (collectively, the "Allied Companies"),
Robert Picow and Joseph Forer (together, the "Allied Stockholders"). The Allied
Companies were merged with and into the Subsidiary and all of the outstanding
shares of common stock of each of the Allied Companies were converted into an
aggregate of 2,025,000 shares (the "Allied Stockholders' Shares") of Common
Stock of the Company (the "Merger"). Messrs. Picow and Forer received 1,741,500
shares and 283,500 shares, respectively, of the Company's Common Stock,
representing approximately 16.4% and 2.7%, respectively, of the shares
outstanding. The Allied Companies distribute wireless communications products
throughout the United States and Latin America.
Simultaneous with the Closing:
1. Robert Picow was elected as the Vice Chairman and
a director of the Company to serve for a term of
three years in the same class of directors as
Robert J. Laikin, Chairman of the Board, President
and Chief Executive Officer of the Company, and
Joseph Forer was elected as a director of the
Company to serve for a term of two years in the
same class of directors as J. Mark Howell,
Executive Vice President, Chief Operating Officer
and Chief Financial Officer of the Company; and
2. The Company entered into three-year Employment
Agreements with each of Messrs. Forer and Picow;
3. The Company entered into Registration Rights
Agreements with each of the Allied Stockholders
pursuant to which the Company has agreed that for
a period of eighteen months, commencing six months
following the Closing, at the request of the
Allied Stockholders, it will register 750,000 shares
of the Allied Stockholders' Shares under the Act.
The Allied Stockholders have requested such
registration.
The source of the consideration paid in the Merger was
authorized but unissued shares of common stock of the Company.
-2-
<PAGE>
The amount of consideration paid by the Company in the Merger
was determined by negotiations with the Allied Stockholders and their
representatives.
The descriptions of the Merger Agreement and the other
agreements described herein, are qualified in their entirety by reference to the
copy of the Merger Agreement and the other agreements which are incorporated as
exhibits to this Report and which are incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
A. Financial Statements of the Business Acquired.
1. Combined balance sheets as of December 31, 1994 and 1995
and combined statements of income for the years ended December 31, 1993,
1994 and 1995.*
2. Unaudited combined balance sheet as of March 31, 1996 and
unaudited combined statements of income and cash flows for the three months
ended March 31, 1995 and 1996.
B. Pro Forma Financial Information and Exhibits.
1. Unaudited pro forma condensed combined balance sheet as of
December 31, 1995 and unaudited pro forma condensed combined statements of
income for the years ended December 31, 1993, 1994 and 1995.*
2. Unaudited pro forma condensed combined balance sheet as of March
31, 1996 and unaudited pro forma condensed combined statements of income for the
three months ended March 31, 1995 and 1996.
C. Exhibit 10.1 - Agreement and Plan of Merger, as amended
on April 29, 1996, by and among the Company,
Brightpoint Acquisition, Inc., a wholly-owned
subsidiary of the Company, Allied Communications, Inc.,
Allied Communications of Florida, Inc., Allied
Communications of Georgia, Inc., Allied Communications
of Illinois, Inc., Allied Communications of Puerto
Rico, Inc., Robert Picow and Joseph Forer.*
D. Exhibit 10.2 - Employment Agreement between the
Company and Robert Picow dated June 7, 1996.
- --------
* Incorporated by reference to the Company's Proxy Statement
dated April 29, 1996.
-3-
<PAGE>
E. Exhibit 10.3 - Employment Agreement between the Company
and Joseph Forer, dated June 7, 1996.
F. Exhibit 10.4 - Registration Rights Agreement between
the Company and Robert Picow, dated June 7, 1996.
G. Exhibit 10.5 - Registration Rights Agreement between
the Company and Joseph Forer, dated June 7, 1996.
H. Exhibit 23.1 - Consent of Coopers & Lybrand L.L.P., dated
June 10, 1996.
I. Exhibit 23.2 - Consent of Weiss, Freedman & Strouss, PC,
dated June 10, 1996.
-4-
<PAGE>
Allied Communications, Inc. and Affiliates
Combined Balance Sheets
March 31, 1996
--------------
(Unaudited)
Assets
Current assets:
Cash and cash equivalents $ 2,718,000
Accounts receivable, net 19,164,000
Inventories 11,152,000
Other current assets 1,085,000
------------
Total current assets 34,119,000
Property and equipment, net 511,000
Other assets 127,000
------------
Total assets $ 34,757,000
============
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable and accrued
expenses $ 20,170,000
Note payable 7,407,000
------------
Total current liabilities 27,577,000
Stockholder loans 340,000
Stockholders' equity:
Common stock 24,000
Paid-in capital 16,000
Retained earnings 6,800,000
------------
Total stockholders' equity 6,840,000
------------
Total liabilities and stockholders' equity $ 34,757,000
============
See accompanying notes.
F-1
<PAGE>
Allied Communications, Inc. and Affiliates
Combined Statements of Income
(Unaudited)
Three Months Ended March 31
1995 1996
----------- -----------
Net sales $ 33,636,000 $34,908,000
Cost of sales 31,034,000 31,971,000
----------- -----------
Gross profit 2,602,000 2,937,000
Selling, general and
administrative expenses 1,645,000 1,701,000
----------- -----------
Income from operations 957,000 1,236,000
Interest expense, net 167,000 133,000
----------- -----------
Income before income taxes 790,000 1,103,000
Income taxes --- 3,000
----------- -----------
Net income $ 790,000 $ 1,100,000
=========== ===========
See accompanying notes.
F-2
<PAGE>
Allied Communications, Inc. and Affiliates
Combined Statements of Cash Flows
(Unaudited)
Three Months Ended March 31
1995 1996
----------- -----------
Operating activities
Net income $ 790,000 $ 1,100,000
Adjustments to reconcile net income to net
Cash provided by (used in) operating
activities:
Depreciation 20,000 22,000
Changes in current assets and liabilities:
Accounts receivable 4,206,000 2,282,000
Inventories 5,100,000 5,131,000
Other current assets (440,000) (46,000)
Accounts payable and accrued expenses (13,295,000) (7,770,000)
----------- -----------
Net cash provided by (used in) operating activities (3,619,000) 719,000
Investing activities
Capital expenditures (83,000) (54,000)
Other assets (2,000) (78,000)
----------- -----------
Net cash used in investing activities (85,000) (132,000)
Financing activities
Net borrowings on note payable 5,452,000 1,744,000
Payments on stockholder loans (800,000) (214,000)
Distributions to stockholders (31,000) (120,000)
----------- -----------
Net cash provided by financing activities 4,621,000 1,410,000
----------- -----------
Net increase in cash 917,000 1,997,000
Cash and cash equivalents at beginning of period 389,000 721,000
----------- -----------
Cash and cash equivalents at end of period $ 1,306,000 $ 2,718,000
=========== ===========
See accompanying notes.
F-3
<PAGE>
Allied Communications, Inc. and Affiliates
Notes To Combined Financial Statements
(Unaudited)
1. Basis of Presentation
Allied Communications, Inc. and Affiliates, (the "Company") are leading
worldwide distributors of wireless communication equipment and accessories.
The accompanying combined financial statements include the accounts of Allied
Communications, Inc., whose principal location is Bensalem, Pennsylvania;
Allied Communications of Georgia, Inc.; Allied Communications of Illinois,
Inc.; Allied Communications of Florida, Inc. and Allied Communications of
Puerto Rico, Inc. These entities have been combined because they are commonly
owned and controlled. All intercompany transactions between these entities
have been eliminated.
The accompanying unaudited combined financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10
of Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for
complete financial statements. In the opinion of the Company, all adjustments
(consisting of only normal recurring accruals) considered necessary to
present fairly the financial statements have been included.
The combined statement of income for the three months ended March 31, 1996 is
not necessarily indicative of the results that may be expected for the entire
year. For further information reference is made to the audited combined
financial statements of the Company and the footnotes thereto included in
Brightpoint, Inc.'s Proxy Statement dated April 29, 1996.
2. Income Taxes
The Company is taxed as an S corporation. Under this election, the earnings
of the Company are reported on the income tax returns of the individual
stockholders for federal and certain state income tax purposes. The Company
provides for income taxes in its combined financial statements for states
which do not recognize S corporations.
3. Business Combination
On June 7, 1996, the Company consummated its merger with Brightpoint, Inc.
through an exchange of 2,025,000 shares of Brightpoint, Inc. Common Stock for
all of the outstanding shares of Common Stock of the Company. Brightpoint,
Inc. will account for the merger using the pooling of interests method.
F-4
<PAGE>
Unaudited Pro Forma Condensed Combined Financial Statements
The following unaudited pro forma condensed combined financial
statements reflect the merger between Brightpoint, Inc. ("Brightpoint") and
Allied Communications, Inc., Allied Communications of Florida, Inc., Allied
Communications of Georgia, Inc., Allied Communications of Illinois, Inc. and
Allied Communications of Puerto Rico, Inc., (collectively the "Allied
Companies"), consummated on June 7, 1996 and accounted for on a "pooling of
interests" basis. The pro forma condensed combined financial statements are
based on the respective historical financial statements and notes thereto, of
Brightpoint, which are incorporated herein by reference to Brightpoint's
Quarterly Report on Form 10-Q for the period ended March 31, 1996, and the
Allied Companies, which are included elsewhere in this Form 8-K. The pro forma
condensed combined balance sheet combines Brightpoint's March 31, 1996
historical balance sheet with the Allied Companies' March 31, 1996 historical
combined balance sheet assuming a March 31, 1996 Merger date. The pro forma
condensed combined statements of income combine Brightpoint's historical
statements of income for the three months ended March 31, 1995 and 1996 with the
corresponding Allied Companies' historical combined statements of income for the
three months ended March 31, 1995 and 1996 assuming that the Merger had occurred
on January 1 of each year.
The pro forma information is presented for illustrative purposes only
and is not necessarily indicative of the operating results or financial position
that would have occurred if the Merger had been consummated as of the beginning
of the periods presented, nor is it necessarily indicative of future operating
results or financial position. These pro forma condensed combined financial
statements do not reflect any sales attrition, cost savings or synergies which
may result from the Merger.
These pro forma combined financial statements should be read in
conjunction with the historical financial statements of Brightpoint incorporated
elsewhere herein by reference, and the historical combined financial statements
of the Allied Companies included elsewhere in this Form 8-K.
F-5
<PAGE>
<TABLE>
<CAPTION>
Brightpoint, Inc. and Allied Communications, Inc. and Affiliates
Unaudited Pro Forma Condensed Combined Balance Sheets
March 31, 1996
Pro Forma
Pro Forma Condensed
Brightpoint Allied Adjustments Combined
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 3,000 $ 2,718,000 $ - $ 2,721,000
Accounts receivables, net 41,309,000 19,164,000 (2,392,000)(3) 58,081,000
Accounts receivable, related party 10,818,000 - (3,873,000)(3) 6,945,000
Inventories 37,248,000 11,152,000 - 48,400,000
Prepaid expenses 926,000 1,085,000 - 2,011,000
Deferred taxes 360,000 - - 360,000
----------------- ----------------- ---------------- -----------------
Total current assets 90,664,000 34,119,000 (6,265,000) 118,518,000
Property and equipment, net 3,767,000 511,000 - 4,278,000
Other assets 1,401,000 127,000 - 1,528,000
----------------- ----------------- ----------------- -----------------
Total assets $ 95,832,000 $ 34,757,000 $ (6,265,000) $ 124,324,000
================= ================= ================= =================
Liabilities and stockholders' equity
Current liabilities:
Accounts payable $ 23,094,000 $ 20,112,000 $ (6,265,000)(3) $ 36,941,000
Accrued payroll and other liabilities 2,000,000 58,000 - 2,058,000
Note payable, bank 9,636,000 7,407,000 - 17,043,000
----------------- ----------------- ----------------- -----------------
Total current liabilities 34,730,000 27,577,000 (6,265,000) 56,042,000
Deferred taxes 48,000 - - 48,000
Stockholder loans - 340,000 - 340,000
Stockholders' equity:
Preferred stock - - - -
Common stock 86,000 24,000 (4,000)(1) 106,000
Additional paid-in capital 50,837,000 16,000 4,000 (1)
6,800,000 (2) 57,657,000
Retained earnings 10,131,000 6,800,000 (6,800,000)(2) 10,131,000
----------------- ----------------- ----------------- -----------------
Total stockholders' equity 61,054,000 6,840,000 - 67,894,000
----------------- ----------------- ----------------- -----------------
Total liabilities and
stockholders' equity $ 95,832,000 $ 34,757,000 $ (6,265,000) $ 124,324,000
================= ================= ================= =================
See accompanying notes to unaudited pro forma condensed combined financial statements.
</TABLE>
F-6
<PAGE>
<TABLE>
<CAPTION>
Brightpoint, Inc. and Allied Communications, Inc. and Affiliates
Unaudited Pro Forma Condensed Combined Statements of Income
Three Months Ended March 31, 1996
Pro Forma
Pro Forma Condensed
Brightpoint Allied Adjustments Combined
--------------------- --------------------- ---------------------- ---------------------
<S> <C> <C> <C> <C>
Net sales $ 87,662,000 $ 34,908,000 $ (9,610,000)(3) $ 112,960,000
Cost of sales 82,314,000 31,971,000 (9,253,000)(3) 105,032,000
--------------------- --------------------- ---------------------- ---------------------
Gross profit 5,348,000 2,937,000 (357,000) 7,928,000
Selling, general and
administrative expenses (1) 1,976,000 1,701,000 - 3,677,000
--------------------- --------------------- ---------------------- ---------------------
Income from operations 3,372,000 1,236,000 (357,000) 4,251,000
Interest expense, net 51,000 133,000 - 184,000
--------------------- --------------------- ---------------------- ---------------------
Income before income taxes 3,321,000 1,103,000 (357,000) 4,067,000
Income taxes (4) 1,298,000 431,000 (140,000) 1,589,000
--------------------- --------------------- ---------------------- ---------------------
Net income $ 2,023,000 $ 672,000 $ (217,000) $ 2,478,000
===================== ===================== ====================== =====================
Net income per share:
Net income per share $ 0.23 $ 0.23
===================== =====================
Weighted average common
shares outstanding 8,959,000 10,984,000
===================== =====================
See accompanying notes to unaudited pro forma condensed combined financial statements.
</TABLE>
F-7
<PAGE>
<TABLE>
<CAPTION>
Brightpoint, Inc. and Allied Communications, Inc. and Affiliates
Unaudited Pro Forma Condensed Combined Statements of Income
Three Months Ended March 31, 1995
Pro Forma
Condensed
Brightpoint Allied Combined
--------------------- -------------------- --------------------
<S> <C> <C> <C>
Net sales $ 63,545,000 $ 33,636,000 $ 97,181,000
Cost of sales 59,942,000 31,034,000 90,976,000
--------------------- -------------------- --------------------
Gross profit 3,603,000 2,602,000 6,205,000
Selling, general and
administrative expenses (1) 1,438,000 1,645,000 3,083,000
--------------------- -------------------- --------------------
Income from operations 2,165,000 957,000 3,122,000
Interest expense, net 115,000 167,000 282,000
--------------------- -------------------- --------------------
Income before income taxes 2,050,000 790,000 2,840,000
Income taxes (4) 900,000 309,000 1,209,000
--------------------- -------------------- --------------------
Net income $ 1,150,000 $ 481,000 $ 1,631,000
===================== ==================== ====================
Net income per share:
Net income per share $ 0.17 $ 0.19
===================== ====================
Weighted average common
shares outstanding 6,574,000 8,599,000
===================== ====================
See accompanying notes to unaudited pro forma condensed combined financial statements.
</TABLE>
F-8
<PAGE>
Notes to Unaudited Pro Forma Condensed Combined Financial Statements
1. The pro forma condensed combined financial statements reflect the issuance
of 2,025,000 shares of Brightpoint, Inc. ("Brightpoint") Common Stock on
June 7, 1996 in exchange for all of the outstanding Common Stock of the
Allied Companies in connection with the Agreement and Plan of Merger, as
amended.
There are no material differences between the accounting policies of
Brightpoint and the Allied Companies. Certain amounts in the Allied
Companies' historical combined financial statements have been reclassified
to conform to the pro forma condensed combined presentation.
Direct transaction costs of approximately $2,000,000 associated with the
Merger will be charged to operations during the quarter the Merger is
consummated and are not included in the pro forma condensed combined
statements of income.
Pro forma combined net income per share for all periods presented is
computed after taking into consideration the 2,025,000 shares of
Brightpoint's Common Stock to be exchanged for all of the outstanding
common stock of the Allied Companies.
2. The stockholders of the Allied Companies have elected under Subchapter S of
the Internal Revenue Code to include the income of the Company in their own
for income tax purposes. This adjustment reflects the conversion of the
Allied Companies from S corporations to a C corporation and the transfer of
undistributed retained earnings generated while S corporations to
additional paid-in capital on the effective date of the Merger.
3. Adjustment to eliminate accounts receivables, accounts payable and sales
between Brightpoint and the Allied Companies.
4. The stockholders of the Allied Companies have elected under Subchapter S
of the Internal Revenue Code to include the income of the Companies in
their own for income tax purposes and have provided for current income
taxes in its combined financial statements only for jurisdictions which do
not recognize S corporations. The income tax amounts presented in the pro
forma condensed combined statements of income represent an estimate of the
income taxes that Brightpoint and the Allied Companies would have incurred
had they been tax paying entities for all periods presented. These income
tax amounts do not represent the amounts that would have resulted had
Brightpoint and the Allied Companies filed consolidated income tax returns
during the periods presented. The effect on pro forma condensed combined
net income for the recognition of deferred tax assets and liabilities
relating to the conversion of the Allied Companies from S corporations to a
C corporation is not material.
F-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Dated: June 12, 1996
BRIGHTPOINT, INC.
By: /s/ J. Mark Howell
--------------------------------
Name: J. Mark Howell
Title: Executive Vice President
-5-
<PAGE>
Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT dated as of June 7, 1996 between BRIGHTPOINT, INC.,
a Delaware corporation (the "Employer" or the "Company"), and Robert Picow (the
"Employee").
W I T N E S S E T H :
WHEREAS, the Employer desires to employ the Employee as the
Vice Chairman of the Board of Directors of the Company (the "Board") and
President of Brightpoint U.S.A., one of the Company's newly created divisions
and to be assured of his services as such on the terms and conditions
hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on
such terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Employer and the Employee hereby agree as follows:
1. Term. Employer hereby agrees to employ Employee, and
Employee hereby agrees to serve Employer for a three-year period commencing
effective as of the date of this Agreement (the "Effective Date") (such period
being herein referred to as the "Initial Term," and any year commencing on the
Effective Date or any anniversary of the Effective Date being hereinafter
referred to as an "Employment Year"). After the Initial Term, this Agreement
shall be renewable automatically for successive one year periods (each such
period being referred to as a "Renewal Term"), unless, more than thirty days
prior to the expiration of the Initial Term or any Renewal Term, either the
Employee or the Company give written notice that employment will not be renewed.
2. Employee Duties.
(a) During the term of this Agreement, the Employee shall
have the duties and responsibilities of Vice Chairman of the Board and President
of Brightpoint U.S.A., one of the Company's newly created divisions, reporting
directly to the President of Employer and the Board. It is understood that such
duties and responsibilities shall be reasonably related to the Employee's
position.
(b) The Employee shall devote substantially all of his
business time, attention, knowledge and skills faithfully, diligently and to the
best of his ability, in furtherance of the business and activities of the
Company. The principal place of performance by the Employee of his duties
hereunder shall be the Company's principal executive offices or such other place
as the
<PAGE>
Board shall determine, although the Employee may be required to travel outside
of the area where the Company's principal executive offices are located in
connection with the business of the Company.
3. Compensation.
(a) During the term of this Agreement, the Employer shall
pay the Employee a salary (the "Salary") at a rate of $150,000 per annum in
respect of each Employment Year, payable in equal installments bi-weekly, or at
such other times as may mutually be agreed upon between the Employer and the
Employee. Such Salary may be increased from time to time at the discretion of
the Board.
(b) In addition to the foregoing, the Employee shall be
entitled to such other cash bonuses as may from time to time be awarded to him
by the Board during or in respect of his employment hereunder.
4. Benefits.
(a) During the term of this Agreement, the Employee shall
have the right to receive or participate in all benefits and plans which the
Company may from time to time institute during such period for its employees and
for which the Employee is eligible. Nothing paid to the Employee under any plan
or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the salary or any other obligation payable to the
Employee pursuant to this Agreement.
(b) During the term of this Agreement, the Employee shall
be granted the same number of paid holidays, personal days off, vacation days
and sick leave days as are granted to Robert J. Laikin. Such vacation may be
taken in the Employee's discretion with the prior approval of the Employee, and
at such time or times as are not inconsistent with the reasonable business needs
of the Company.
(c) During the term of this Agreement, the Company shall
provide to Employee an apartment in Indianapolis, Indiana and shall pay to
Employee $2,000 per month as reimbursement for personal travel expenses.
5. Travel Expenses. All travel and other expenses incident to
the rendering of services reasonably incurred on behalf of the Company by the
Employee during the term of this Agreement shall be paid by the Employer. If any
such expenses are paid in the first instance by the Employee, the Employer shall
reimburse him therefor on presentation of appropriate receipts for any such
expenses.
-2-
<PAGE>
6. Termination. Employee's employment under this Agreement may
be terminated without any breach of this Agreement only on the following
circumstances:
6.1. Death. The Employee's employment under this Agreement
shall terminate upon his death.
6.2. Disability. If, as a result of the Employee's
incapacity due to physical or mental illness, the Employee shall have been
absent from his duties under this Agreement for 150 calendar days during any
calendar year, the Employer may terminate the Employee's employment under this
Agreement.
6.3. Cause. The Employer may terminate the Employee's
employment under this Agreement for Cause. For purposes of this Agreement, the
Employer shall have "Cause" to terminate the Employee's employment under this
Agreement upon (a) the willful and continued failure by the Employee to
substantially perform his duties under this Agreement (other than any such
failure resulting from the Employee's incapacity due to physical or mental
illness) after demand for substantial performance is delivered by the Employer,
in writing, specifically identifying the manner in which the Employer believes
the Employee has not substantially performed his duties and the Employee fails
to perform as required within 15 days after such demand is made, (b) the willful
engaging by the Employee in criminal misconduct (including embezzlement and
criminal fraud) which is materially injurious to the Employer, monetarily or
otherwise or (c) the conviction of the Employee of a felony. For purposes of
this paragraph, no act, or failure to act, on the Employee's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Employer.
Notwithstanding the foregoing, the Employee shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than sixty percent of the entire membership of the
Board (other than the Employee) at a meeting of the Board called and held for
such purpose (after reasonable written notice to the Employee and an opportunity
for him, together with his counsel, to be heard before the Board), finding that
in the good faith opinion of the Board, the Employee was guilty of conduct set
forth above in clause (a), (b) or (c), and specifying the particulars thereof in
detail.
6.4. Termination by the Employee for Good Reason, Upon a
Change of Control or Because of Ill Health. The Employee may terminate his
employment under this Agreement (a) for Good Reason (as hereinafter defined),
(b) at any time within six
-3-
<PAGE>
months after a Change of Control, or (c) if his health should become impaired to
any extent that makes the continued performance of his duties under this
Agreement hazardous to his physical or mental health or his life, provided that,
in the latter case, the Employee shall have furnished the Employer with a
written statement from a qualified doctor to such effect and provided, further,
that at the Employer's request and expense the Employee shall submit to an
examination by a doctor selected by the Employer and such doctor shall have
concurred in the conclusion of the Employee's doctor.
6.4.1. Good Reason. For purposes of this Agreement, "Good
Reason" shall mean (a) any assignment to the Employee of any duties or reporting
obligations other than those contemplated by, or any limitation of the powers of
the Employee in any respect not contemplated by, this Agreement, (b) failure by
the Employer to comply with its material obligations and agreements contained in
this Agreement, or (c) failure of the Employer to obtain the assumption of the
agreement to perform this Agreement by any successor as contemplated in Section
9(g) of this Agreement. With respect to the matters set forth in clauses (a),
(b) and (c) of this paragraph, the Employee must give the Employer 30 days prior
written notice of his intent to terminate this Agreement as a result of any
breach or alleged breach of the applicable provision and the Employer shall have
the right to cure any such breach or alleged breach within such 30 day period.
6.4.2. Change of Control. For purposes of this Agreement, a
"Change of Control" shall be deemed to occur, unless previously consented to in
writing by the Employee, upon (a) the actual acquisition or the execution of an
agreement to acquire 20% or more of the voting securities of the Employer by any
person or entity not affiliated with the Employee (other than pursuant to a bona
fide underwriting agreement relating to a public distribution of securities of
the Employer), (b) the commencement of a tender or exchange offer for more than
20% of the voting securities of the Employer by any person or entity not
affiliated with the Employee, (c) the commencement of a proxy contest against
the management for the election of a majority of the Board of the Employer if
the group conducting the proxy contest owns, has or gains the power to vote at
least 20% of the voting securities of the Employer, (d) a vote by the Board to
merge, consolidate, sell all or substantially all of the assets of the Employer
to any person or entity not affiliated with the Employee, or (e) the election of
directors constituting a majority of the Board of Directors who have not been
nominated or approved by the Employee.
7. Notice of Termination.
Any termination of the Employee's employment by the Employer
or by the Employee (other than termination by reason of
-4-
<PAGE>
the Employee's death) shall be communicated by written Notice of Termination to
the other party of this Agreement. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated.
8. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's
employment is terminated by his death, the date of his death, (b) if the
Employee's employment is terminated pursuant to Section 6.2 above, the date on
which the Notice of Termination is given, (c) if the Employee's employment is
terminated pursuant to Section 6.3 above, the date specified on the Notice of
Termination after the expiration of any cure periods and (d) if the Employee's
employment is terminated for any other reason, the date on which a Notice of
Termination is given after the expiration of any cure periods.
9. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by reason
of his death, the Employer shall pay to such person as he shall designate in a
notice filed with the Employer, or if no such person shall be designated, to his
estate as a lump sum benefit, his full Salary to the date of his death in
addition to any payments to the Employee's spouse, beneficiaries or estate may
be entitled to receive pursuant to any pension or employee benefit plan or life
insurance policy or similar plan or policy then maintained by the Employer, and
such payments shall, assuming the Employer is in compliance with the provisions
of this Agreement, fully discharge the Employer's obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness,
the Employee shall continue to receive his Salary until the Employee's
employment is terminated pursuant to Section 6.2 of this Agreement, or until the
Employee terminates his employment pursuant to Section 6.4(a) of this Agreement,
whichever first occurs. After termination, the Employee shall be paid, in equal
monthly installments, 100% of his Salary, at the rate in effect at the time
Notice of Termination is given, for one year, and thereafter for one additional
year at an annual rate equal to 50% of the Salary which would have been in
effect under this Agreement, plus, in each case, any disability payments
otherwise payable by or
-5-
<PAGE>
pursuant to plans provided by the Employer. To the extent physically and
mentally capable of so doing without potentially impairing or damaging his
health, the Employee shall provide consulting services to the Employer during
the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for
Cause, the Employer shall pay the Employee his full Salary through the Date of
Termination, at the rate in effect at the time Notice of Termination is given,
and the Employer shall, assuming the Employer is in compliance with the
provisions of this Agreement, have no further obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall
terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3
hereof (it being understood that a purported termination pursuant to Section 6.2
or 6.3 hereof which is disputed and finally determined not to have been proper
shall be a termination by the Employer in breach of this Agreement), including
as a result of a Change of Control, and/or (B) the Employee shall terminate his
employment for Good Reason or at any time within six months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination
at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of
Termination (in lieu of any further payments pursuant to Section 3 of this
Agreement), Severance Pay (as hereinafter defined), payable on the first day
following the Date of Termination, as follows:
(A) if the Employee, without Good Reason,
terminates his employment at any time within six months after a Change of
Control, or if, prior to and not as a result of a Change of Control, the
Employee's employment is terminated either by the Employee for Good Reason or by
the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to the highest of (a) $150,000 or (b) total compensation earned by
the Employee from the Employer during the one-year period prior to such Date of
Termination, or
(B) if after or as a result of a Change of
Control, the Employee's employment is terminated either by the Employee for Good
Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a
lump sum amount equal to the highest of (i) $450,000 or (ii) total compensation
earned by the
-6-
<PAGE>
Employee during the three-year period prior to such Date of Termination (in case
of either (ii)(A) or (ii)(B), "Severance Pay"); and
(iii) all other damages to which the Employee may
be entitled as result of the termination of his employment under this Agreement,
including all legal fees and expenses incurred by him in contesting or disputing
any such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
(e) In the event of a termination of this Agreement by the
Employee as a result of a Change of Control pursuant to which the Severance Pay
is as set forth above in Section 9(d), the Severance Pay shall be the average
taxable compensation of the Employee for the five taxable years prior to such
termination or such higher amount as may be permitted by the Internal Revenue
Service to compute "base amount" for purposes of Section 280G of the Internal
Revenue Code of 1954 (as amended) multiplied by three (but in no event may this
amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless
agreed to by the Employee). In the event of a termination of this Agreement by
the Employee as a result of a Change of Control the amount payable pursuant to
Section 9(d) may not exceed the maximum amount which the Employer may pay the
Employee without such amount being subject to excise tax as a result of excess
parachute payments pursuant to the Internal Revenue Code of 1986, as amended,
unless agreed to by the Employee in writing. The Employee shall be entitled to
initially receive the entire amount provided for in Section 9(d) and shall only
be required to repay to the Employer any amount which is ultimately and finally
determined by the Internal Revenue Service (or an appropriate court) to have
been in excess of the permitted amount and the Employer agrees to use its best
efforts to support the Employee's position that such payments are not subject to
excise tax in any dealings with the Internal Revenue Service and in any
appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount
of any payment provided for in this Section 9 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 9 be
reduced by any compensation earned by the Employee as the result of employment
by another employer or business or by profits earned by the Employee from any
other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and reasonably substance satisfactory to the Employee, to expressly assume
and agree to perform this Agreement in the same manner and to the
-7-
<PAGE>
same extent that the Employer would be required to perform it if no such
succession had taken place. Failure of the Employer to obtain such Agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Employee to compensation from the Employer in
the same amount and on the same terms as he would be entitled to hereunder if he
terminated his employment for Good Reason, except for purposes of implementing
the foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Employer" shall mean
the Employer and any successor to its business and/or assets which executes the
Agreement or which otherwise becomes bound by the terms and conditions of this
Agreement by operation of law.
10. Confidentiality; Noncompetition.
(a) The Employer and the Employee acknowledge that the
services to be performed by the Employee under this Agreement are unique and
extraordinary and, as a result of such employment, the Employee will be in
possession of confidential information relating to the business practices of the
Company. The term "confidential information" shall mean any and all information
(verbal and written) relating to the Company or any of its affiliates, or any of
their respective activities, other than such information which can be shown by
the Employee to be in the public domain (such information not being deemed to be
in the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 10(a), including, but not limited to, information
relating to: trade secrets, personnel lists, financial information, research
projects, services used, pricing, customers, customer lists and prospects,
product sourcing, marketing and selling and servicing. The Employee agrees that
he will not, during or for a period of two years after the termination of
employment, except as may be required in the course of the performance of his
duties hereunder, directly or indirectly, use, communicate, disclose or
disseminate to any person, firm or corporation any confidential information
regarding the clients, customers or business practices of the Company acquired
by the Employee during his employment by Employer, without the prior written
consent of Employer; provided, however, that the Employee understands that
Employee will be prohibited from misappropriating any trade secret (as defined
for purposes of Indiana law) at any time during or after the termination of
employment.
(b) The Employee hereby agrees that he shall not, during the
period of his employment and for a period of two (2) years following such
employment, directly or indirectly, within any county (or adjacent county) in
any State within the United States or territory outside the United States in
which the Company is engaged in business during the period of the Employee's
employment or on the date of termination of the
-8-
<PAGE>
Employee's employment, engage, have an interest in or render any services to any
business (whether as owner, manager, operator, licensor, licensee, lender,
partner, stockholder, joint venturer, employee, consultant or otherwise)
competitive with the Company's business activities. Notwithstanding the
foregoing, nothing herein shall prevent the Employee from owning stock in a
publicly traded corporation whose activities compete with those of the
Company's, provided that such stock holdings are not greater than 5% of such
corporation. The Employee agrees, during the term of this Agreement, to disclose
to the Company all investments which the Employee has, directly or indirectly,
in an entity which competes with the Company, or an entity which does business
with the Company.
(c) The Employee hereby agrees that he shall not, during the
period of his employment and for a period of two (2) years following such
employment, directly or indirectly, take any action which constitutes an
interference with or a disruption of any of the Company's business activities
including, without limitation, the solicitations of the Company's customers, or
persons listed on the personnel lists of the Company. At no time during the term
of this Agreement, or thereafter shall the Employee directly or indirectly,
disparage the commercial, business or financial reputation of the Company.
(d) For purposes of clarification, but not of limitation,
the Employee hereby acknowledges and agrees that the provisions of subparagraphs
10(b) and (c) above shall serve as a prohibition against him, during the period
referred to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of the Company, including
the Employee, (but only those suppliers existing during the time of the
Employee's employment by the Company, or at the termination of his employment),
to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Employee's employment for any
reason whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Employee including all copies thereof, shall
be promptly returned to the Company.
(f) (i) The Employee agrees that all processes, technologies
and inventions ("Inventions"), including new contributions, improvements, ideas
and discoveries, whether patentable or not, conceived, developed, invented or
made by him during his employment by Employer shall belong to the Company,
provided that such Inventions grew out of the Employee's work
-9-
<PAGE>
with the Company are related in any manner to the business (commercial or
experimental) of the Company or are conceived or made on the Company's time or
with the use of the Company's facilities or materials. The Employee shall
further: (a) promptly disclose such Inventions to the Company; (b) assign to the
Company, without additional compensation, all patent and other rights to such
Inventions for the United States and foreign countries; (c) sign all papers
necessary to carry out the foregoing; and (d) give testimony in support of his
inventorship;
(ii) If any Invention is described in a patent
application or is disclosed to third parties, directly or indirectly, by the
Employee within two years after the termination of his employment by the
Company, it is to be presumed that the Invention was conceived or made during
the period of the Employee's employment by the Company; and
(iii) The Employee agrees that he will not assert any
rights to any Invention as having been made or acquired by him prior to the date
of this Agreement, except for Inventions, if any, disclosed to the Company in
writing prior to the date hereof.
(g) The Company shall be the sole owner of all products and
proceeds of the Employee's services hereunder, including, but not limited to,
all materials, ideas, concepts, formats, suggestions, developments,
arrangements, packages, programs and other intellectual properties that the
Employee may acquire, obtain, develop or create in connection with and during
the term of the Employee's employment hereunder, free and clear of any claims by
the Employee (or anyone claiming under the Employee) of any kind or character
whatsoever (other than the Employee's right to receive payments hereunder). The
Employee shall, at the request of the Company, execute such assignments,
certificates or other instruments as the Company may from time to time deem
necessary or desirable to evidence, establish, maintain, perfect, protect,
enforce or defend its right, or title and interest in or to any such properties.
(h) The parties hereto hereby acknowledge and agree that (i)
the Company would be irreparably injured in the event of a breach by the
Employee of any of his obligations under this Section 10(h), (ii) monetary
damages would not be an adequate remedy for any such breach, and (iii) the
Company shall be entitled to injunctive relief, in addition to any other remedy
which it may have, in the event of any such breach.
(i) The parties hereto hereby acknowledge that, in addition
to any other remedies the Company may have under Section 7(h) hereof, the
Company shall have the right and remedy to require the Employee to account for
and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits (collectively, "Benefits") derived or received
-10-
<PAGE>
by the Employee as the result of any transactions constituting a breach of any
of the provisions of Section 10, and the Employee hereby agrees to account for
any pay over such Benefits to the Company.
(j) Each of the rights and remedies enumerated in Section
10(h) and 10(i) shall be independent of the other, and shall be severally
enforceable, and all of such rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity.
(k) If any provision contained in this Section 10 is
hereafter construed to be invalid or unenforceable, the same shall not affect
the remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
(l) If any provision contained in this Section 10 is found to
be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determination shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
(m) It is the intent of the parties hereto that the covenants
contained in this Section 10 shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought (the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 10 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of said
provision in any other jurisdiction.
11. Indemnification. The Employer shall indemnify and hold
harmless the Employee against any and all expenses reasonably incurred by him in
connection with or arising out of (a) the defense of any action, suit or
proceeding in which he is a party, or (b) any claim asserted or threatened
against him, in either case by reason of or relating to his being or having been
an employee, officer or director of the Company, whether or not he continues to
be such an employee, officer or director at the time of incurring such expenses,
except insofar as such indemnification is prohibited by law. Such expenses shall
include, without limitation, the fees and disbursements of attorneys, amounts of
-11-
<PAGE>
judgments and amounts of any settlements, provided that such expenses are agreed
to in advance by the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer's Certificate of
Incorporation or Bylaws, and shall apply with respect to any matters
attributable to periods prior to the Effective Date, and to matters attributable
to his employment hereunder, without regard to when asserted.
12. General. This Agreement is further governed by the
following provisions:
(a) Notices. All notices relating to this Agreement shall be
in writing and shall be either personally delivered, sent by telecopy (receipt
confirmed) or mailed by certified mail, return receipt requested, to be
delivered at such address as is indicated below, or at such other address or to
the attention of such other person as the recipient has specified by prior
written notice to the sending party. Notice shall be effective when so
personally delivered, one business day after being sent by telecopy or five days
after being mailed.
To the Employer:
Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, IN 46278
Attention: J. Mark Howell
To the Employee:
Robert Picow
______________________________
______________________________
With, in either case, a copy in the same manner to:
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attention: Robert J. Mittman, Esq.
(b) Parties in Interest. Employee may not delegate his duties
or assign his rights hereunder. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
(c) Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties hereto with
respect to the employment of the Employee by the Employer and contains all of
the covenants and agreements between the parties with respect to such employment
in any manner
-12-
<PAGE>
whatsoever. Any modification or termination of this Agreement
will be effective only if it is in writing signed by the party to
be charged.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana.
(e) Warranty. Employee hereby warrants and represents as
follows:
(i) That the execution of this Agreement and the
discharge of Employee's obligations hereunder will not breach or conflict with
any other contract, agreement, or understanding between Employee and any other
party or parties.
(ii) Employee has ideas, information and know-how
relating to the type of business conducted by Employer, and Employee's
disclosure of such ideas, information and know-how to Employer will not conflict
with or violate the rights of any third party or parties.
(f) Severability. In the event that any term or condition in
this Agreement shall for any reason be held by a court of competent jurisdiction
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other term or condition of
this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable term or condition had never been contained herein.
(g) Execution in Counterparts. This Agreement may be executed
by the parties in one or more counterparts, each of which shall be deemed to be
an original but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ Robert Laikin
------------------------------------------
Name: Robert Laikin
Title: President
/s/ Robert Picow
------------------------------------------
Robert Picow
<PAGE>
EMPLOYMENT AGREEMENT
AGREEMENT dated as of June 7, 1996 between BRIGHTPOINT, INC.,
a Delaware corporation (the "Employer" or the "Company"), and Joseph Forer (the
"Employee").
W I T N E S S E T H :
WHEREAS, the Employer desires to employ the Employee as
President of Brightpoint Latin America, one of the Company's newly created
divisions, and to be assured of his services as such on the terms and conditions
hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on
such terms and conditions;
NOW, THEREFORE, in consideration of the mutual cove- nants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Employer and the Employee hereby agree as follows:
1. Term. Employer hereby agrees to employ Employee, and
Employee hereby agrees to serve Employer for a three-year period commencing
effective as of the date of this Agreement (the "Effective Date") (such period
being herein referred to as the "Initial Term," and any year commencing on the
Effective Date or any anniversary of the Effective Date being hereinafter
referred to as an "Employment Year"). After the Initial Term, this Agreement
shall be renewable automatically for successive one year periods (each such
period being referred to as a "Renewal Term"), unless, more than thirty days
prior to the expiration of the Initial Term or any Renewal Term, either the
Employee or the Company give written notice that employment will not be renewed.
2. Employee Duties.
(a) During the term of this Agreement, the Employee shall
have the duties and responsibilities of President of Brightpoint Latin America,
one of the Company's newly created divisions, reporting to the President of
Employer and the Board of Directors of the Employer (the "Board"). It is
understood that such duties and responsibilities shall be reasonably related to
the Employee's position.
(b) The Employee shall devote substantially all of his
business time, attention, knowledge and skills faithfully, diligently and to the
best of his ability, in furtherance of the business and activities of the
Company. The principal place of performance by the Employee of his duties
hereunder shall be the Company's offices located in the greater Miami, Florida
area, although the Employee may be required to travel outside of the
<PAGE>
area where the Company's principal executive offices are located in connection
with the business of the Company.
3. Compensation.
(a) During the term of this Agreement, the Employer shall
pay the Employee a salary (the "Salary") at a rate of $150,000 per annum in
respect of each Employment Year, payable in equal installments bi-weekly, or at
such other times as may mutually be agreed upon between the Employer and the
Employee. Such Salary may be increased from time to time at the discretion of
the Board.
(b) In addition to the foregoing, the Employee shall be
entitled to such other cash bonuses as may from time to time be awarded to him
by the Board during or in respect of his employment hereunder.
4. Benefits.
(a) During the term of this Agreement, the Employee shall
have the right to receive or participate in all benefits and plans which the
Company may from time to time institute during such period for its employees and
for which the Employee is eligible. Nothing paid to the Employee under any plan
or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the salary or any other obligation payable to the
Employee pursuant to this Agreement.
(b) During the term of this Agreement, the Employee shall
be granted the same number of paid holidays, personal days off, vacation days
and sick leave days as are granted to Robert J. Laikin. Such vacation may be
taken in the Employee's discretion with the prior approval of the Employee, and
at such time or times as are not inconsistent with the reasonable business needs
of the Company.
5. Travel Expenses. All travel and other expenses incident to
the rendering of services reasonably incurred on behalf of the Company by the
Employee during the term of this Agreement shall be paid by the Employer. If any
such expenses are paid in the first instance by the Employee, the Employer shall
reimburse him therefor on presentation of appropriate receipts for any such
expenses.
6. Termination. Employee's employment under this Agreement may
be terminated without any breach of this Agreement only on the following
circumstances:
6.1. Death. The Employee's employment under this Agreement
shall terminate upon his death.
-2-
<PAGE>
6.2. Disability. If, as a result of the Employee's
incapacity due to physical or mental illness, the Employee shall have been
absent from his duties under this Agreement for 150 calendar days during any
calendar year, the Employer may terminate the Employee's employment under this
Agreement.
6.3. Cause. The Employer may terminate the Employee's
employment under this Agreement for Cause. For purposes of this Agreement, the
Employer shall have "Cause" to terminate the Employee's employment under this
Agreement upon (a) the willful and continued failure by the Employee to
substantially perform his duties under this Agreement (other than any such
failure resulting from the Employee's incapacity due to physical or mental
illness) after demand for substantial performance is delivered by the Employer,
in writing, specifically identifying the manner in which the Employer believes
the Employee has not substantially performed his duties and the Employee fails
to perform as required within 15 days after such demand is made, (b) the willful
engaging by the Employee in criminal misconduct (including embezzlement and
criminal fraud) which is materially injurious to the Employer, monetarily or
otherwise or (c) the conviction of the Employee of a felony. For purposes of
this paragraph, no act, or failure to act, on the Employee's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Employer.
Notwithstanding the foregoing, the Employee shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than sixty percent of the entire membership of the
Board (other than the Employee) at a meeting of the Board called and held for
such purpose (after reasonable written notice to the Employee and an opportunity
for him, together with his counsel, to be heard before the Board), finding that
in the good faith opinion of the Board, the Employee was guilty of conduct set
forth above in clause (a), (b) or (c), and specifying the particulars thereof in
detail.
6.4. Termination by the Employee for Good Reason, Upon a
Change of Control or Because of Ill Health. The Employee may terminate his
employment under this Agreement (a) for Good Reason (as hereinafter defined),
(b) at any time within six months after a Change of Control, or (c) if his
health should become impaired to any extent that makes the continued performance
of his duties under this Agreement hazardous to his physical or mental health or
his life, provided that, in the latter case, the Employee shall have furnished
the Employer with a written statement from a qualified doctor to such effect and
provided, further, that at the Employer's request and expense the
-3-
<PAGE>
Employee shall submit to an examination by a doctor selected by the Employer
and such doctor shall have concurred in the conclusion of the Employee's doctor.
6.4.1. Good Reason. For purposes of this Agreement,
"Good Reason" shall mean (a) any assignment to the Employee of any duties or
reporting obligations other than those contemplated by, or any limitation of the
powers of the Employee in any respect not contemplated by, this Agreement, (b)
failure by the Employer to comply with its material obligations and agreements
contained in this Agreement, or (c) failure of the Employer to obtain the
assumption of the agreement to perform this Agreement by any successor as
contemplated in Section 9(g) of this Agreement. With respect to the matters set
forth in clauses (a), (b) and (c) of this paragraph, the Employee must give the
Employer 30 days prior written notice of his intent to terminate this Agreement
as a result of any breach or alleged breach of the applicable provision and the
Employer shall have the right to cure any such breach or alleged breach within
such 30 day period.
6.4.2. Change of Control. For purposes of this
Agreement, a "Change of Control" shall be deemed to occur, unless previously
consented to in writing by the Employee, upon (a) the actual acquisition or the
execution of an agreement to acquire 20% or more of the voting securities of the
Employer by any person or entity not affiliated with the Employee (other than
pursuant to a bona fide underwriting agreement relating to a public distribution
of securities of the Employer), (b) the commencement of a tender or exchange
offer for more than 20% of the voting securities of the Employer by any person
or entity not affiliated with the Employee, (c) the commencement of a proxy
contest against the management for the election of a majority of the Board of
the Employer if the group conducting the proxy contest owns, has or gains the
power to vote at least 20% of the voting securities of the Employer, (d) a vote
by the Board to merge, consolidate, sell all or substantially all of the assets
of the Employer to any person or entity not affiliated with the Employee, or (e)
the election of directors constituting a majority of the Board of Directors who
have not been nominated or approved by the Employee.
7. Notice of Termination.
Any termination of the Employee's employment by the Employer
or by the Employee (other than termination by reason of the Employee's death)
shall be communicated by written Notice of Termination to the other party of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for
-4-
<PAGE>
termination of the Employee's employment under the provision so indicated.
8. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's
employment is terminated by his death, the date of his death, (b) if the
Employee's employment is terminated pursuant to Section 6.2 above, the date on
which the Notice of Termination is given, (c) if the Employee's employment is
terminated pursuant to Section 6.3 above, the date specified on the Notice of
Termination after the expiration of any cure periods and (d) if the Employee's
employment is terminated for any other reason, the date on which a Notice of
Termination is given after the expiration of any cure periods.
9. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by
reason of his death, the Employer shall pay to such person as he shall designate
in a notice filed with the Employer, or if no such person shall be designated,
to his estate as a lump sum benefit, his full Salary to the date of his death in
addition to any payments the Employee's spouse, beneficiaries or estate may be
entitled to receive pursuant to any pension or employee benefit plan or life
insurance policy or similar plan or policy then maintained by the Employer, and
such payments shall, assuming the Employer is in compliance with the provisions
of this Agreement, fully discharge the Employer's obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform
his duties hereunder as a result of incapacity due to physical or mental
illness, the Employee shall continue to receive his Salary until the Employee's
employment is terminated pursuant to Section 6.2 of this Agreement, or until the
Employee terminates his employment pursuant to Section 6.4(a) of this Agreement,
whichever first occurs. After termination, the Employee shall be paid, in equal
monthly installments, 100% of his Salary, at the rate in effect at the time
Notice of Termination is given, for one year, and thereafter for one additional
year at an annual rate equal to 50% of the Salary which would have been in
effect under this Agreement, plus, in each case, any disability payments
otherwise payable by or pursuant to plans provided by the Employer. To the
extent physically and mentally capable of so doing without potentially impairing
or damaging his health, the Employee shall provide consulting services to the
Employer during the period that he is receiving payments pursuant to this
Section 9(b).
-5-
<PAGE>
(c) If the Employee's employment shall be terminated for
Cause, the Employer shall pay the Employee his full Salary through the Date of
Termination, at the rate in effect at the time Notice of Termination is given,
and the Employer shall, assuming the Employer is in compliance with the
provisions of this Agreement, have no further obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall
terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3
hereof (it being understood that a purported termination pursuant to Section 6.2
or 6.3 hereof which is disputed and finally determined not to have been proper
shall be a termination by the Employer in breach of this Agreement), including
as a result of a Change of Control, and/or (B) the Employee shall terminate his
employment for Good Reason or at any time within six months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at
the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination
(in lieu of any further payments pursuant to Section 3 of this Agreement),
Severance Pay (as hereinafter defined), payable on the first day following the
Date of Termination, as follows:
(A) if the Employee, without Good Reason, terminates
his employment at any time within six months after a Change of Control, or if,
prior to and not as a result of a Change of Control, the Employee's employment
is terminated either by the Employee for Good Reason or by the Employer other
than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the
highest of (a) $150,000 or (b) total compensation earned by the Employee from
the Employer during the one-year period prior to such Date of Termination, or
(B) if after or as a result of a Change of Control,
the Employee's employment is terminated either by the Employee for Good Reason
or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to the highest of (i) $450,000 or (ii) total compensation earned by
the Employee during the three-year period prior to such Date of Termination (in
case of either (ii)(A) or (ii)(B), "Severance Pay"); and
(iii) all other damages to which the Employee may be
entitled as result of the termination of his employment under
-6-
<PAGE>
this Agreement, including all legal fees and expenses incurred by him in
contesting or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the
Employee as a result of a Change of Control pursuant to which the Severance Pay
is as set forth above in Section 9(d), the Severance Pay shall be the average
taxable compensation of the Employee for the five taxable years prior to such
termination or such higher amount as may be permitted by the Internal Revenue
Service to compute "base amount" for purposes of Section 280G of the Internal
Revenue Code of 1954 (as amended) multiplied by three (but in no event may this
amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless
agreed to by the Employee). In the event of a termination of this Agreement by
the Employee as a result of a Change of Control the amount payable pursuant to
Section 9(d) may not exceed the maximum amount which the Employer may pay the
Employee without such amount being subject to excise tax as a result of excess
para- chute payments pursuant to the Internal Revenue Code of 1986, as amended,
unless agreed to by the Employee in writing. The Employee shall be entitled to
initially receive the entire amount provided for in Section 9(d) and shall only
be required to repay to the Employer any amount which is ultimately and finally
determined by the Internal Revenue Service (or an appropriate court) to have
been in excess of the permitted amount and the Employer agrees to use its best
efforts to support the Employee's position that such payments are not subject to
excise tax in any dealings with the Internal Revenue Service and in any
appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the
amount of any payment provided for in this Section 9 by seeking other employment
or otherwise, nor shall the amount of any payment provided for in this Section 9
be reduced by any compensation earned by the Employee as the result of
employment by another employer or business or by profits earned by the Employee
from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and reasonably substance satisfactory to the Employee, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Employer would be required to perform it if no such succession had
taken place. Failure of the Employer to obtain such Agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Employee to compensation from the Employer in the same amount
and on the same terms as he would be entitled to hereunder if he
-7-
<PAGE>
terminated his employment for Good Reason, except for purposes of implementing
the foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Employer" shall mean
the Employer and any successor to its business and/or assets which executes the
Agreement or which otherwise becomes bound by the terms and conditions of this
Agreement by operation of law.
10. Confidentiality; Noncompetition.
(a) The Employer and the Employee acknowledge that the
services to be performed by the Employee under this Agreement are unique and
extraordinary and, as a result of such employment, the Employee will be in
possession of confidential information relating to the business practices of the
Company. The term "confidential information" shall mean any and all information
(verbal and written) relating to the Company or any of its affiliates, or any of
their respective activities, other than such information which can be shown by
the Employee to be in the public domain (such information not being deemed to be
in the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 10(a), including, but not limited to, information
relating to: trade secrets, personnel lists, financial information, research
projects, services used, pricing, customers, customer lists and prospects,
product sourcing, marketing and selling and servicing. The Employee agrees that
he will not, during or for a period of two years after the termination of
employment, except as may be required in the course of the performance of his
duties hereunder, directly or indirectly, use, communicate, disclose or
disseminate to any person, firm or corporation any confidential information
regarding the clients, customers or business prac- tices of the Company acquired
by the Employee, without the prior written consent of Employer; provided,
however, that the Employee understands that Employee will be prohibited from
misappropriating any trade secret (as defined for purposes of Indiana law) at
any time during or after the termination of employment.
(b) The Employee hereby agrees that he shall not, during
the period of his employment and for a period of two (2) years following such
employment, directly or indirectly, within any county (or adjacent county) in
any State within the United States or territory outside the United States in
which the Company is engaged in business during the period of the Employee's
employment or on the date of termination of the Employee's employment, engage,
have an interest in or render any services to any business (whether as owner,
manager, operator, licensor, licensee, lender, partner, stockholder, joint
venturer, employee, consultant or otherwise) competitive with the Company's
business activities. Notwithstanding the foregoing, nothing herein shall prevent
the Employee from owning stock in a publicly
-8-
<PAGE>
traded corporation whose activities compete with those of the Company's,
provided that such stock holdings are not greater than 5% of such corporation.
The Employee agrees, during the term of this Agreement, to disclose to the
Company all investments which the Employee has, directly or indirectly, in an
entity which competes with the Company, or an entity which does business with
the Company.
(c) The Employee hereby agrees that he shall not, during
the period of his employment and for a period of two (2) years following such
employment, directly or indirectly, take any action which constitutes an
interference with or a disruption of any of the Company's business activities
including, without limitation, the solicitations of the Company's customers, or
persons listed on the personnel lists of the Company. At no time during the term
of this Agreement, or thereafter shall the Employee directly or indirectly,
disparage the commercial, business or financial reputation of the Company.
(d) For purposes of clarification, but not of limitation,
the Employee hereby acknowledges and agrees that the provisions of subparagraphs
10(b) and (c) above shall serve as a prohibition against him, during the period
referred to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of the Company, including
the Employee, (but only those suppliers existing during the time of the
Employee's employment by the Company, or at the termination of his employment),
to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Employee's employment for
any reason whatsoever, all documents, records, notebooks, equipment, price
lists, specifications, programs, customer and prospective customer lists and
other materials which refer or relate to any aspect of the business of the
Company which are in the possession of the Employee including all copies
thereof, shall be promptly returned to the Company.
(f) (i) The Employee agrees that all processes,
technologies and inventions ("Inventions"), including new contributions,
improvements, ideas and discoveries, whether patentable or not, conceived,
developed, invented or made by him during his employment by Employer shall
belong to the Company, provided that such Inventions grew out of the Employee's
work with the Company are related in any manner to the business (commercial or
experimental) of the Company or are conceived or made on the Company's time or
with the use of the Company's facilities or materials. The Employee shall
further: (a) promptly disclose such Inventions to the Company; (b) assign to the
Company, without additional compensation, all patent and
-9-
<PAGE>
other rights to such Inventions for the United States and foreign countries;
(c)sign all papers necessary to carry out the foregoing; and (d)give testimony
in support of his inventorship;
(ii) If any Invention is described in a patent
application or is disclosed to third parties, directly or indirectly, by the
Employee within two years after the termination of his employment by the
Company, it is to be presumed that the Invention was conceived or made during
the period of the Employee's employment by the Company; and
(iii) The Employee agrees that he will not assert any
rights to any Invention as having been made or acquired by him prior to the date
of this Agreement, except for Inventions, if any, disclosed to the Company in
writing prior to the date hereof.
(g) The Company shall be the sole owner of all products and
proceeds of the Employee's services hereunder, including, but not limited to,
all materials, ideas, concepts, formats, suggestions, developments,
arrangements, packages, programs and other intellectual properties that the
Employee may acquire, obtain, develop or create in connection with and during
the term of the Employee's employment hereunder, free and clear of any claims by
the Employee (or anyone claiming under the Employee) of any kind or character
whatsoever (other than the Employee's right to receive payments hereunder). The
Employee shall, at the request of the Company, execute such assignments,
certificates or other instruments as the Company may from time to time deem
necessary or desirable to evidence, establish, maintain, perfect, protect,
enforce or defend its right, or title and interest in or to any such properties.
(h) The parties hereto hereby acknowledge and agree that
(i) the Company would be irreparably injured in the event of a breach by the
Employee of any of his obligations under this Section 10, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Company shall
be entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach.
(i) The parties hereto hereby acknowledge that, in
addition to any other remedies the Company may have under Section 10(h) hereof,
the Company shall have the right and remedy to require the Employee to account
for and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits (collectively, "Benefits") derived or received by
the Employee as the result of any transactions constituting a breach of any of
the provisions of Section 10, and the Employee hereby agrees to account for any
pay over such Benefits to the Company.
-10-
<PAGE>
(j) Each of the rights and remedies enumerated in
Section 10(h) and 10(i) shall be independent of the other, and shall be
severally enforceable, and all of such rights and remedies shall be in addition
to, and not in lieu of, any other rights and remedies available to the Company
under law or in equity.
(k) If any provision contained in this Section 10 is
hereafter construed to be invalid or unenforceable, the same shall not affect
the remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
(l) If any provision contained in this Section 10 is
found to be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determi- nation shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
(m) It is the intent of the parties hereto that the
covenants contained in this Section 10 shall be enforced to the fullest extent
permissible under the laws and public policies of each jurisdiction in which
enforcement is sought (the Employee hereby acknowledging that said restrictions
are reasonably necessary for the protection of the Company). Accordingly, it is
hereby agreed that if any of the provisions of this Section 10 shall be
adjudicated to be invalid or unenforceable for any reason whatsoever, said
provision shall be (only with respect to the operation thereof in the particular
jurisdiction in which such adjudication is made) construed by limiting and
reducing it so as to be enforceable to the extent permissible, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of said provision in any other jurisdiction.
11. Indemnification. The Employer shall indemnify and hold
harmless the Employee against any and all expenses reason- ably incurred by him
in connection with or arising out of (a) the defense of any action, suit or
proceeding in which he is a party, or (b) any claim asserted or threatened
against him, in either case by reason of or relating to his being or having been
an employee, officer or director of the Company, whether or not he continues to
be such an employee, officer or director at the time of incurring such expenses,
except insofar as such indemnifica- tion is prohibited by law. Such expenses
shall include, without limitation, the fees and disbursements of attorneys,
amounts of judgments and amounts of any settlements, provided that such expenses
are agreed to in advance by the Employer. The foregoing indemnification
obligation is independent of any similar obliga- tion provided in the Employer's
Certificate of Incorporation or Bylaws, and shall apply with respect to any
matters attributable
-11-
<PAGE>
to periods prior to the Effective Date, and to matters attribut- able to his
employment hereunder, without regard to when asserted.
12. General. This Agreement is further governed by the
following provisions:
(a) Notices. All notices relating to this Agreement shall
be in writing and shall be either personally delivered, sent by telecopy
(receipt confirmed) or mailed by certified mail, return receipt requested, to be
delivered at such address as is indicated below, or at such other address or to
the attention of such other person as the recipient has specified by prior
written notice to the sending party. Notice shall be effective when so
personally delivered, one business day after being sent by telecopy or five days
after being mailed.
To the Employer:
Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, IN 46278
Attention: J. Mark Howell
To the Employee:
Joseph Forer
12370 SW 64th Avenue
Miami, Florida 33156
With, in either case, a copy in the same manner to:
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attention: Robert J. Mittman, Esq.
(b) Parties in Interest. Employee may not delegate his
duties or assign his rights hereunder. This Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
(c) Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties hereto with
respect to the employment of the Employee by the Employer and contains all of
the covenants and agreements between the parties with respect to such employment
in any manner whatsoever. Any modification or termination of this Agreement will
be effective only if it is in writing signed by the party to be charged.
-12-
<PAGE>
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana.
(e) Warranty. Employee hereby warrants and represents as
follows:
(i) That the execution of this Agreement and the
discharge of Employee's obligations hereunder will not breach or conflict with
any other contract, agreement, or understanding between Employee and any other
party or parties.
(ii) Employee has ideas, information and know-how
relating to the type of business conducted by Employer, and Employee's
disclosure of such ideas, information and know-how to Employer will not conflict
with or violate the rights of any third party or parties.
(f) Severability. In the event that any term or condition
in this Agreement shall for any reason be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other term or
condition of this Agreement, but this Agreement shall be construed as if such
invalid or illegal or unenforceable term or condition had never been contained
herein.
(g) Execution in Counterparts. This Agreement may be
executed by the parties in one or more counterparts, each of which shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement, and shall become effective when one or more counterparts
has been signed by each of the parties hereto and delivered to each of the other
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ Robert Laikin
-----------------------------------
Name: Robert Laikin
Title: President
/s/ Joseph Forer
-----------------------------------
Joseph Forer
<PAGE>
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of the 7th day of June, 1996, between
Robert Picow (individually a "Holder" or collectively with Joseph Forer, the
"Holders") and Brightpoint, Inc., a Delaware corporation having its principal
place of business at 6402 Corporate Drive, Indianapolis, Indiana 46278 (the
"Company").
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the Holders are receiving from the Company an aggregate of
2,025,000 shares of common stock of the Company, par value $.01 per share (the
"Common Stock") upon the terms set forth in the Agreement and Plan of Merger
among the Company, the Subsidiary, the Allied Stockholders and the Allied
Companies (as each such term is defined therein), dated the date hereof (the
"Merger Agreement"); and
WHEREAS, the Company desires to grant to the Holder the
registration rights set forth herein with respect to the shares of the Company's
Common Stock issuable pursuant to the Merger Agreement (the "Shares");
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Registrable Securities. As used herein the term
"Registrable Security" means each of the Shares and all shares of the Company
issued or issuable with respect to the Shares by way of stock split, stock
dividend, recapitalization, merger or
<PAGE>
consolidation; provided, however, that with respect to any particular
Registrable Security, such security shall cease to be a Registrable Security
when, as of the date of determination, (i) it has been effectively registered
under the Securities Act of 1933, as amended (the "Securities Act") and disposed
of pursuant thereto, (ii) the date that the holders of Registrable Securities
receive an opinion of counsel to the Company that all of the Registrable
Securities may be freely tradable without registration under the Securities Act,
under Rule 144 (without volume or manner of sale limitations) promulgated under
the Securities Act ("Rule 144") or otherwise or (iii) it has ceased to be
outstanding. The term "Registrable Securities" means any and/or all of the
securities falling within the foregoing definition of a "Registrable Security."
In the event of any merger, reorganization, consolidation, recapitalization or
other change in corporate structure affecting the Common Stock, such adjustment
shall be made in the definition of "Registrable Security" as is appropriate in
order to prevent any dilution or enlargement of the rights granted pursuant to
this Agreement.
2. Piggyback Registration. If at any time following the date
hereof the Company proposes to prepare and file a registration statement or
post-effective amendment thereto (for purposes of this Agreement, collectively,
a "Registration Statement"), with the Securities and Exchange Commission (the
"SEC") covering, (a) an underwritten primary offering of Common Stock (an
"Underwritten Offering") or (b) an offering of Common Stock on behalf of any
then officer of the Company (as defined in
-2-
<PAGE>
Rule 16a-1(f) promulgated under the Securities Act) (other than Form S-8 or
successor form or if such offering relates to Common Stock acquired by the
officer subsequent to the date hereof in connection with a merger with or an
acquisition by the Company) (a "Management Offering"), the Company will give
written notice of its intention to do so by registered mail ("Notice"), at least
fifteen (15) business days prior to the filing of each such Registration
Statement, to all holders of the Registrable Securities. Upon the written
request of such a holder (a "Requesting Holder"), made within ten (10) business
days after receipt of the Notice, that the Company include any of the Requesting
Holder's Registrable Securities in the proposed Registration Statement, the
Company shall (subject to the provisions of the last paragraph of this Section),
as to each such Requesting Holder, use its best efforts to effect the
registration under the Securities Act of the Registrable Securities which it has
been so requested to register ("Piggyback Registration"), at the Company's sole
cost and expense and at no cost or expense to the Requesting Holders; provided,
however, that if, with respect to an Underwritten Offering, in the written
opinion of the Company's managing underwriter, if any, for such offering, the
inclusion of all or a portion of the Registrable Securities requested to be
registered, when added to the securities being registered by the Company or
selling security holder(s) pursuant to then existing contractual rights
("Qualified Selling Security Holders"), will exceed the maximum amount of the
Company's securities which can be marketed (i) at a
-3-
<PAGE>
price reasonably related to their then current market value, or (ii) without
otherwise materially adversely affecting the Underwritten Offering, then the
Company may exclude from such offering all or a portion of the Registrable
Securities which it has been requested to register; provided, further, that any
such exclusion of Registrable Securities is conditioned upon the following
paragraph.
If securities are proposed to be offered for sale pursuant to
such Registration Statement by other security holders of the Company and the
total number of securities to be offered by the Requesting Holder and such other
Qualified Selling Security Holders is required to be reduced pursuant to a
request from the managing underwriter (which request shall be made only for the
reasons and in the manner set forth above), the number of Registrable Securities
to be offered by Requesting Holder pursuant to such Registration Statement shall
equal the number which bears the same ratio to the maximum number of securities
that the underwriter believes may be included for all the Qualified Selling
Security Holders (including the Requesting Holder) as the original number of
Registrable Securities proposed to be sold by the Requesting Holder bears to the
total original number of securities proposed to be offered by the Requesting
Holder and the Qualified Selling Security Holders.
In addition, with respect to a Management Offering, the number
of Registrable Securities to be offered by the Requesting Holder pursuant to any
such Management Offering shall be equal to the aggregate number of Registrable
Securities then owned by the
-4-
<PAGE>
Requesting Holder multiplied by a fraction, the numerator of which shall be the
number of shares of Common Stock to be offered by the executive selling the
highest proportion of his aggregate number of shares of Common Stock in the
Management Offering, and the denominator of which shall be the aggregate number
of shares of Common Stock owned by such executive.
Notwithstanding the provisions of this Paragraph 2, the
Company shall have the right at any time after it shall have given written
notice pursuant to this Paragraph 2 (irrespective of whether any written request
for inclusion of such securities shall have already been made) to elect not to
file any such proposed Registration Statement, or to withdraw the same after the
filing but prior to the effective date thereof.
3. Demand Registration.
(a) At any time during the eighteen (18) month
period commencing six (6) months from the date hereof, the Holders of the
Registrable Securities shall have one right (which right is in addition to the
piggyback registration rights provided for under Paragraph 2 hereof),
exercisable by written notice to the Company by the holders of a majority of the
Registrable Securities (the "Demand Registration Request"), which notice may be
given any time after the date hereof, to have the Company prepare and file with
the SEC, on one occasion, at the sole expense of the Company, a Registration
Statement and such other documents, including a prospectus, as may be necessary
(in the opinion of counsel for the Company), in order to comply with the
provisions of the Act, so as to permit a public offering and
-5-
<PAGE>
sale of up to an aggregate of 750,000 Shares of the Registrable Securities by
the Holders. Nothing contained herein shall require the Company to undergo an
audit, other than in the ordinary course of business.
(b) Upon the consummation of and notwithstanding
the registration of Registrable Securities pursuant to this Paragraph 3, the
Holders (as if acting in concert as described in Rule 144(e)(3)(vi) promulgated
under the Securities Act) shall not sell, transfer, assign, hypothecate, pledge
or otherwise dispose of, in the aggregate, more than the number of Registrable
Securities which would be permitted to be sold pursuant to the volume
limitations of Rule 144(e) under the Securities Act, as if the Registrable
Securities were restricted securities subject to Rule 144(e) (subject to
increase pursuant to Sections 3(c) or 5 hereof). The certificates representing
the Shares will bear a legend to the effect of the restrictions set forth in
this Paragraph 3(b).
(c) The Company may postpone or delay, for up to
two (2) months following any request for registration pursuant to Paragraph
3(a), the filing of a registration statement if, in the good faith judgment of
the Board of Directors of the Company, such filing would, if not deferred, be
seriously detrimental to a then proposed or pending financial project,
acquisition, merger or corporate reorganization or other material event;
provided, however, the Company may not utilize this right more than once in any
twelve month period. In the event any registration is postponed or delayed
pursuant to this Section 3(c) the number of
-6-
<PAGE>
securities which Holders would have been able to sell pursuant to Rule 144(e)
during such period had the registration been effected shall be added to the
number of securities which Holders are permitted to sell pursuant to Section
3(b) hereof.
(d) Any effective registration statement pursuant
to this Paragraph 3 shall be withdrawn by the Company upon the second
anniversary of the date hereof, and any Registrable Securities registered
thereunder and not sold thereunder shall be deregistered at that time.
(e) In connection with any registration under
Paragraph 3, subject to Paragraph 3(c) above, the Company shall file the
registration statement as expeditiously as possible after the execution of this
agreement, shall use its reasonable best efforts to have any such registration
statement declared effective on the six (6) month anniversary of the date
hereof, and keep such registration statement effective until that date which is
two (2) years from the date hereof, and shall furnish each holder of Registrable
Securities such number of prospectuses as shall reasonably be requested.
4. Additional Terms. The following provisions shall be
applicable to any Registration Statement filed pursuant to Paragraph 2 or 3 of
this Agreement:
(a) If any stop order shall be issued by the SEC
in connection therewith, to use its best efforts to obtain the removal of such
order as soon as practicable. Following the effective date of the Registration
Statement, the Company shall, upon the request of the Holder, forthwith supply
such reasonable
-7-
<PAGE>
number of copies of the registration statement, preliminary prospectus and
prospectus meeting the requirements of the Securities Act as shall be reasonably
requested by the Holder to permit the Holder to make a public distribution of
his Registrable Securities. The Company will use its reasonable best efforts to
qualify the Registrable Securities for sale at the Company's expense in such
states as the Holder of Registrable Securities shall reasonably request,
provided that no such qualification will be required in any jurisdiction where,
solely as a result thereof, the Company would be subject to service of general
process or to taxation or qualification as a foreign corporation doing business
in such jurisdiction. The obligations of the Company hereunder with respect to
the Holder's Registrable Securities are expressly conditioned on the Holder's
furnishing to the Company such appropriate information concerning the Holder,
the Holder's Registrable Securities and the terms of the Holder's offering of
such Registrable Securities as the Company may reasonably request and any other
information the SEC or any other applicable regulatory authority may require. If
any event occurs as a result of which a prospectus required to be delivered by a
Holder, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, the Company shall as soon as practicable notify such Holder and
at the request of such Holder prepare and furnish to such Holder a reasonable
number of copies of a supplement to or an amendment of
-8-
<PAGE>
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(b) The Company shall bear the entire cost and
expense of any registration of the Registrable Securities (including, without
limitation, all registration, filing, qualification, printer's and accounting
fees); provided, however, that the Holder shall be solely responsible for the
fees of any counsel retained by him or her in connection with such registration
and any transfer taxes or underwriting discounts or commissions applicable to
the Registrable Securities sold by him or her pursuant thereto.
(c) The Company shall indemnify and hold harmless
the Holder and each underwriter, within the meaning of the Securities Act, who
may purchase from or sell for the Holder, any Registrable Securities, from and
against any and all losses, claims, damages and liabilities arising out of,
based upon or caused by any untrue statement of a material fact contained in the
registration statement, any other registration statement filed by the Company
under the Securities Act, any post-effective amendment to such registration
statements, or any prospectus included therein required to be filed or furnished
by reason of this Agreement or arising out of, based upon or caused by any
omission or alleged omission to state therein a material fact
-9-
<PAGE>
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or alleged untrue statement or omission or
alleged omission based upon information furnished or required to be furnished in
writing to the Company by the Holder or underwriter expressly for use therein;
which indemnification shall include each person, if any, who controls any such
underwriter within the meaning of the Securities Act and each officer, director,
employee and agent of such underwriter; provided, however, that the Company
shall not be obligated to so indemnify the Holder or any such underwriter or
other person referred to above unless the Holder or underwriter or other person,
as the case may be, shall at the same time indemnify the Company, its directors,
each officer signing the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement, any registration statement or any prospectus required to
be filed or furnished by reason of this Agreement or caused by any omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or alleged untrue statement or
omission based upon information furnished in writing to the Company by the
Holder or underwriter expressly for use
-10-
<PAGE>
therein. Promptly after receipt by an indemnified party under this Section 4(c)
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, notify the
indemnifying party in writing of the commencement thereof and the indemnifying
party shall have the right to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to the ability
to defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 4(c), but the omission so to notify the
indemnifying party will not relieve such party of any liability that such party
may have to any indemnified party other than this Section 4(c). The indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
subsequent to any assumption of the defense by the indemnifying party shall not
be at the expense of the indemnifying party unless the employment of such
counsel by the indemnified party is the result of conflicts in interest between
the indemnified party and the indemnifying party or otherwise permits the
indemnified party to present defenses that could not reasonably be presented by
the indemnifying party. The indemnifying party shall not be liable to indemnify
any person for any settlement of any such action effected without the
indemnifying party's written consent.
-11-
<PAGE>
(d) If for any reason the indemnification
provided for in the preceding subparagraph is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any loss,
claim, damage, liability or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by the indemnified party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations.
(e) Neither the filing of a Registration
Statement by the Company pursuant to this Agreement nor the making of any
request for prospectuses by the Holder shall impose upon the Holder any
obligation to sell his or her Registrable Securities.
(f) The Holder, upon receipt of notice from the
Company that an event has occurred which requires a post-effective amendment to
the Registration Statement or a supplement to the prospectus included therein,
shall promptly discontinue the sale of his or her Registrable Securities or
Demand Shares until the Holder receives a copy of a supplemented or amended
prospectus from the Company, which the Company shall provide as soon as
practicable after such notice.
-12-
<PAGE>
5. Investment Letter. Each Holder is simultaneous herewith,
delivering to the Company an investment letter, a copy of which is attached
hereto pursuant to which each Holder acknowledges the Company's policy on
insider trading and agrees to be bound by any lock-up or other restriction on
the sale of the Company's securities to which the Company's executive officers
or director are now bound or may, in the future, agree to be bound. No such
restriction is currently in effect. In the event any sale is postponed or
delayed pursuant to this Paragraph 5, the number of securities which Holders
would have been able to sell during such period had the sale been effected shall
be added to the number of securities which Holders are permitted to sell
pursuant to Section 3(b) hereof.
6. Governing Law.
(a) The Registrable Securities are being
delivered in New York. This Agreement shall be deemed to have been made and
delivered in the State of New York and shall be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
laws of the State of New York.
7. Amendment. This Agreement may only be amended by a
written instrument executed by the Company and the Holder.
8. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
-13-
<PAGE>
9. Execution in Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
10. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly given when
delivered by hand or mailed by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to the Holder, to his or her address set forth on the
signature page of this Agreement.
If to the Company, to the address set forth on the first page
of this Agreement.
11. Binding Effect; Benefits. The Holder may not assign his or
her rights hereunder except to a pledgee of Holder's Registrable Securities or
to one or more members of his immediate family in connection with estate
planning purposes (or one or more trusts for the primary benefit of such
persons); provided that each such assignee agrees to be bound by the provisions
hereof with respect to paragraph 3(b) (including for purposes of aggregating
sales) and paragraph 5. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, legal
representatives and successors. Nothing herein contained, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective heirs, legal representatives, successors and
-14-
<PAGE>
such permitted assigns, any rights or remedies under or by reason of this
Agreement.
12. Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
13. Severability. Any provision of this Agreement which is
held by a court of competent jurisdiction to be prohibited or unenforceable in
any jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ J. Mark Howell
___________________________
Name: J. Mark Howell
Title: C.F.O.
HOLDER:
/s/ Robert Picow
------------------------------
Signature
Robert Picow
------------------------------
Print Name
Address:
------------------------------
------------------------------
-15-
<PAGE>
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of the 7th day of June, 1996, between
Robert Picow (individually a "Holder" or collectively with Joseph Forer, the
"Holders") and Brightpoint, Inc., a Delaware corporation having its principal
place of business at 6402 Corporate Drive, Indianapolis, Indiana 46278 (the
"Company").
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the Holders are receiving from the Company an aggregate of
2,025,000 shares of common stock of the Company, par value $.01 per share (the
"Common Stock") upon the terms set forth in the Agreement and Plan of Merger
among the Company, the Subsidiary, the Allied Stockholders and the Allied
Companies (as each such term is defined therein), dated the date hereof (the
"Merger Agreement"); and
WHEREAS, the Company desires to grant to the Holder the
registration rights set forth herein with respect to the shares of the Company's
Common Stock issuable pursuant to the Merger Agreement (the "Shares");
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Registrable Securities. As used herein the term
"Registrable Security" means each of the Shares and all shares of the Company
issued or issuable with respect to the Shares by way of stock split, stock
dividend, recapitalization, merger or
<PAGE>
consolidation; provided, however, that with respect to any particular
Registrable Security, such security shall cease to be a Registrable Security
when, as of the date of determination, (i) it has been effectively registered
under the Securities Act of 1933, as amended (the "Securities Act") and disposed
of pursuant thereto, (ii) the date that the holders of Registrable Securities
receive an opinion of counsel to the Company that all of the Registrable
Securities may be freely tradable without registration under the Securities Act,
under Rule 144 (without volume or manner of sale limitations) promulgated under
the Securities Act ("Rule 144") or otherwise or (iii) it has ceased to be
outstanding. The term "Registrable Securities" means any and/or all of the
securities falling within the foregoing definition of a "Registrable Security."
In the event of any merger, reorganization, consolidation, recapitalization or
other change in corporate structure affecting the Common Stock, such adjustment
shall be made in the definition of "Registrable Security" as is appropriate in
order to prevent any dilution or enlargement of the rights granted pursuant to
this Agreement.
2. Piggyback Registration. If at any time following the date
hereof the Company proposes to prepare and file a registration statement or
post-effective amendment thereto (for purposes of this Agreement, collectively,
a "Registration Statement"), with the Securities and Exchange Commission (the
"SEC") covering, (a) an underwritten primary offering of Common Stock (an
"Underwritten Offering") or (b) an offering of Common Stock on behalf of any
then officer of the Company (as defined in
-2-
<PAGE>
Rule 16a-1(f) promulgated under the Securities Act) (other than Form S-8 or
successor form or if such offering relates to Common Stock acquired by the
officer subsequent to the date hereof in connection with a merger with or an
acquisition by the Company) (a "Management Offering"), the Company will give
written notice of its intention to do so by registered mail ("Notice"), at least
fifteen (15) business days prior to the filing of each such Registration
Statement, to all holders of the Registrable Securities. Upon the written
request of such a holder (a "Requesting Holder"), made within ten (10) business
days after receipt of the Notice, that the Company include any of the Requesting
Holder's Registrable Securities in the proposed Registration Statement, the
Company shall (subject to the provisions of the last paragraph of this Section),
as to each such Requesting Holder, use its best efforts to effect the
registration under the Securities Act of the Registrable Securities which it has
been so requested to register ("Piggyback Registration"), at the Company's sole
cost and expense and at no cost or expense to the Requesting Holders; provided,
however, that if, with respect to an Underwritten Offering, in the written
opinion of the Company's managing underwriter, if any, for such offering, the
inclusion of all or a portion of the Registrable Securities requested to be
registered, when added to the securities being registered by the Company or
selling security holder(s) pursuant to then existing contractual rights
("Qualified Selling Security Holders"), will exceed the maximum amount of the
Company's securities which can be marketed (i) at a
-3-
<PAGE>
price reasonably related to their then current market value, or (ii) without
otherwise materially adversely affecting the Underwritten Offering, then the
Company may exclude from such offering all or a portion of the Registrable
Securities which it has been requested to register; provided, further, that any
such exclusion of Registrable Securities is conditioned upon the following
paragraph.
If securities are proposed to be offered for sale pursuant to
such Registration Statement by other security holders of the Company and the
total number of securities to be offered by the Requesting Holder and such other
Qualified Selling Security Holders is required to be reduced pursuant to a
request from the managing underwriter (which request shall be made only for the
reasons and in the manner set forth above), the number of Registrable Securities
to be offered by Requesting Holder pursuant to such Registration Statement shall
equal the number which bears the same ratio to the maximum number of securities
that the underwriter believes may be included for all the Qualified Selling
Security Holders (including the Requesting Holder) as the original number of
Registrable Securities proposed to be sold by the Requesting Holder bears to the
total original number of securities proposed to be offered by the Requesting
Holder and the Qualified Selling Security Holders.
In addition, with respect to a Management Offering, the number
of Registrable Securities to be offered by the Requesting Holder pursuant to any
such Management Offering shall be equal to the aggregate number of Registrable
Securities then owned by the
-4-
<PAGE>
Requesting Holder multiplied by a fraction, the numerator of which shall be the
number of shares of Common Stock to be offered by the executive selling the
highest proportion of his aggregate number of shares of Common Stock in the
Management Offering, and the denominator of which shall be the aggregate number
of shares of Common Stock owned by such executive.
Notwithstanding the provisions of this Paragraph 2, the
Company shall have the right at any time after it shall have given written
notice pursuant to this Paragraph 2 (irrespective of whether any written request
for inclusion of such securities shall have already been made) to elect not to
file any such proposed Registration Statement, or to withdraw the same after the
filing but prior to the effective date thereof.
3. Demand Registration.
(a) At any time during the eighteen (18) month
period commencing six (6) months from the date hereof, the Holders of the
Registrable Securities shall have one right (which right is in addition to the
piggyback registration rights provided for under Paragraph 2 hereof),
exercisable by written notice to the Company by the holders of a majority of the
Registrable Securities (the "Demand Registration Request"), which notice may be
given any time after the date hereof, to have the Company prepare and file with
the SEC, on one occasion, at the sole expense of the Company, a Registration
Statement and such other documents, including a prospectus, as may be necessary
(in the opinion of counsel for the Company), in order to comply with the
provisions of the Act, so as to permit a public offering and
-5-
<PAGE>
sale of up to an aggregate of 750,000 Shares of the Registrable Securities by
the Holders. Nothing contained herein shall require the Company to undergo an
audit, other than in the ordinary course of business.
(b) Upon the consummation of and notwithstanding
the registration of Registrable Securities pursuant to this Paragraph 3, the
Holders (as if acting in concert as described in Rule 144(e)(3)(vi) promulgated
under the Securities Act) shall not sell, transfer, assign, hypothecate, pledge
or otherwise dispose of, in the aggregate, more than the number of Registrable
Securities which would be permitted to be sold pursuant to the volume
limitations of Rule 144(e) under the Securities Act, as if the Registrable
Securities were restricted securities subject to Rule 144(e) (subject to
increase pursuant to Sections 3(c) or 5 hereof). The certificates representing
the Shares will bear a legend to the effect of the restrictions set forth in
this Paragraph 3(b).
(c) The Company may postpone or delay, for up to
two (2) months following any request for registration pursuant to Paragraph
3(a), the filing of a registration statement if, in the good faith judgment of
the Board of Directors of the Company, such filing would, if not deferred, be
seriously detrimental to a then proposed or pending financial project,
acquisition, merger or corporate reorganization or other material event;
provided, however, the Company may not utilize this right more than once in any
twelve month period. In the event any registration is postponed or delayed
pursuant to this Section 3(c) the number of
-6-
<PAGE>
securities which Holders would have been able to sell pursuant to Rule 144(e)
during such period had the registration been effected shall be added to the
number of securities which Holders are permitted to sell pursuant to Section
3(b) hereof.
(d) Any effective registration statement pursuant
to this Paragraph 3 shall be withdrawn by the Company upon the second
anniversary of the date hereof, and any Registrable Securities registered
thereunder and not sold thereunder shall be deregistered at that time.
(e) In connection with any registration under
Paragraph 3, subject to Paragraph 3(c) above, the Company shall file the
registration statement as expeditiously as possible after the execution of this
agreement, shall use its reasonable best efforts to have any such registration
statement declared effective on the six (6) month anniversary of the date
hereof, and keep such registration statement effective until that date which is
two (2) years from the date hereof, and shall furnish each holder of Registrable
Securities such number of prospectuses as shall reasonably be requested.
4. Additional Terms. The following provisions shall be
applicable to any Registration Statement filed pursuant to Paragraph 2 or 3 of
this Agreement:
(a) If any stop order shall be issued by the SEC
in connection therewith, to use its best efforts to obtain the removal of such
order as soon as practicable. Following the effective date of the Registration
Statement, the Company shall, upon the request of the Holder, forthwith supply
such reasonable
-7-
<PAGE>
number of copies of the registration statement, preliminary prospectus and
prospectus meeting the requirements of the Securities Act as shall be reasonably
requested by the Holder to permit the Holder to make a public distribution of
his Registrable Securities. The Company will use its reasonable best efforts to
qualify the Registrable Securities for sale at the Company's expense in such
states as the Holder of Registrable Securities shall reasonably request,
provided that no such qualification will be required in any jurisdiction where,
solely as a result thereof, the Company would be subject to service of general
process or to taxation or qualification as a foreign corporation doing business
in such jurisdiction. The obligations of the Company hereunder with respect to
the Holder's Registrable Securities are expressly conditioned on the Holder's
furnishing to the Company such appropriate information concerning the Holder,
the Holder's Registrable Securities and the terms of the Holder's offering of
such Registrable Securities as the Company may reasonably request and any other
information the SEC or any other applicable regulatory authority may require. If
any event occurs as a result of which a prospectus required to be delivered by a
Holder, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, the Company shall as soon as practicable notify such Holder and
at the request of such Holder prepare and furnish to such Holder a reasonable
number of copies of a supplement to or an amendment of
-8-
<PAGE>
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(b) The Company shall bear the entire cost and
expense of any registration of the Registrable Securities (including, without
limitation, all registration, filing, qualification, printer's and accounting
fees); provided, however, that the Holder shall be solely responsible for the
fees of any counsel retained by him or her in connection with such registration
and any transfer taxes or underwriting discounts or commissions applicable to
the Registrable Securities sold by him or her pursuant thereto.
(c) The Company shall indemnify and hold harmless
the Holder and each underwriter, within the meaning of the Securities Act, who
may purchase from or sell for the Holder, any Registrable Securities, from and
against any and all losses, claims, damages and liabilities arising out of,
based upon or caused by any untrue statement of a material fact contained in the
registration statement, any other registration statement filed by the Company
under the Securities Act, any post-effective amendment to such registration
statements, or any prospectus included therein required to be filed or furnished
by reason of this Agreement or arising out of, based upon or caused by any
omission or alleged omission to state therein a material fact
-9-
<PAGE>
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or alleged untrue statement or omission or
alleged omission based upon information furnished or required to be furnished in
writing to the Company by the Holder or underwriter expressly for use therein;
which indemnification shall include each person, if any, who controls any such
underwriter within the meaning of the Securities Act and each officer, director,
employee and agent of such underwriter; provided, however, that the Company
shall not be obligated to so indemnify the Holder or any such underwriter or
other person referred to above unless the Holder or underwriter or other person,
as the case may be, shall at the same time indemnify the Company, its directors,
each officer signing the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement, any registration statement or any prospectus required to
be filed or furnished by reason of this Agreement or caused by any omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or alleged untrue statement or
omission based upon information furnished in writing to the Company by the
Holder or underwriter expressly for use
-10-
<PAGE>
therein. Promptly after receipt by an indemnified party under this Section 4(c)
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, notify the
indemnifying party in writing of the commencement thereof and the indemnifying
party shall have the right to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to the ability
to defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 4(c), but the omission so to notify the
indemnifying party will not relieve such party of any liability that such party
may have to any indemnified party other than this Section 4(c). The indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
subsequent to any assumption of the defense by the indemnifying party shall not
be at the expense of the indemnifying party unless the employment of such
counsel by the indemnified party is the result of conflicts in interest between
the indemnified party and the indemnifying party or otherwise permits the
indemnified party to present defenses that could not reasonably be presented by
the indemnifying party. The indemnifying party shall not be liable to indemnify
any person for any settlement of any such action effected without the
indemnifying party's written consent.
-11-
<PAGE>
(d) If for any reason the indemnification
provided for in the preceding subparagraph is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any loss,
claim, damage, liability or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by the indemnified party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations.
(e) Neither the filing of a Registration
Statement by the Company pursuant to this Agreement nor the making of any
request for prospectuses by the Holder shall impose upon the Holder any
obligation to sell his or her Registrable Securities.
(f) The Holder, upon receipt of notice from the
Company that an event has occurred which requires a post-effective amendment to
the Registration Statement or a supplement to the prospectus included therein,
shall promptly discontinue the sale of his or her Registrable Securities or
Demand Shares until the Holder receives a copy of a supplemented or amended
prospectus from the Company, which the Company shall provide as soon as
practicable after such notice.
-12-
<PAGE>
5. Investment Letter. Each Holder is simultaneous herewith,
delivering to the Company an investment letter, a copy of which is attached
hereto pursuant to which each Holder acknowledges the Company's policy on
insider trading and agrees to be bound by any lock-up or other restriction on
the sale of the Company's securities to which the Company's executive officers
or director are now bound or may, in the future, agree to be bound. No such
restriction is currently in effect. In the event any sale is postponed or
delayed pursuant to this Paragraph 5, the number of securities which Holders
would have been able to sell during such period had the sale been effected shall
be added to the number of securities which Holders are permitted to sell
pursuant to Section 3(b) hereof.
6. Governing Law.
(a) The Registrable Securities are being
delivered in New York. This Agreement shall be deemed to have been made and
delivered in the State of New York and shall be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
laws of the State of New York.
7. Amendment. This Agreement may only be amended by a
written instrument executed by the Company and the Holder.
8. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
-13-
<PAGE>
9. Execution in Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
10. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly given when
delivered by hand or mailed by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to the Holder, to his or her address set forth on the
signature page of this Agreement.
If to the Company, to the address set forth on the first page
of this Agreement.
11. Binding Effect; Benefits. The Holder may not assign his or
her rights hereunder except to a pledgee of Holder's Registrable Securities or
to one or more members of his immediate family in connection with estate
planning purposes (or one or more trusts for the primary benefit of such
persons); provided that each such assignee agrees to be bound by the provisions
hereof with respect to paragraph 3(b) (including for purposes of aggregating
sales) and paragraph 5. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, legal
representatives and successors. Nothing herein contained, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective heirs, legal representatives, successors and
-14-
<PAGE>
such permitted assigns, any rights or remedies under or by reason
of this Agreement.
12. Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
13. Severability. Any provision of this Agreement which is
held by a court of competent jurisdiction to be prohibited or unenforceable in
any jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ J. Mark Howell
___________________________
Name: J. Mark Howell
Title: C.F.O.
HOLDER:
/s/ Robert Picow
------------------------------
Signature
Robert Picow
------------------------------
Print Name
Address:
------------------------------
------------------------------
-15-
<PAGE>
EXHIBIT 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
Brightpoint, Inc. on Form S-8 (File No. 333-03535) and Form S-3 (File No.
333-03569) of our report dated February 23, 1996, of our audits of the combined
financial statements of Allied Communications, Inc. and Affiliates as of
December 31, 1995 and 1994 and for the years then ended which report is
incorporated by reference in this Form 8-K.
COOPERS & LYBRAND L.L.P.
Philadelphia, Pennsylvania
June 10, 1996
<PAGE>
EXHIBIT 23.2
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
Brightpoint, Inc. on Form S-8 (File No. 333-03535) and Form S-3 (File No.
333-03569) of our report dated April 20, 1994, except for Note 12, as to which
the date is April 3, 1995, of our audits of the combined financial statements
of Allied Communications, Inc. and Affiliates as of December 31, 1993 and for
the year then ended which report is incorporated by reference in this Form 8-K.
WEISS, FREEDMAN & STROUSS, PC
Philadelphia, Pennsylvania
June 10, 1996
