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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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): December 3, 1996
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BRIGHTPOINT, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-23494 35-1778566
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
6402 Corporate Drive, Indianapolis, Indiana 46278
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (317) 297-6100
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Not Applicable
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Former name or former address, if changed since last report
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Item 2. Acquisition or Disposition of Assets.
In July 1996, the Company entered into an agreement with Technology
Resources International Ltd. ("TRI"), an international distributor of wireless
communications equipment based in the United Kingdom, pursuant to which the
parties formed Brightpoint International Ltd. ("Brightpoint International"), a
company owned equally by the Company and TRI. Brightpoint International conducts
all of the Company's sales and marketing activities outside of North and South
America. On December 3, 1996, the Company consummated the acquisition of the 50%
of Brightpoint International that it did not already own. The acquisition was
effective as of November 1, 1996. The purchase price for the remaining equity
interest consisted of 400,000 shares of the Company's Common Stock and
$5,000,000 in cash.
Item 7. Exhibit.
Exhibit 10.1 - Stock Purchase Agreement, dated as of October
1, 1996, among the Company, Brightpoint International, TRI,
Safkong Holdings Limited, Marriott Investment & Trade Inc.,
John MacLean-Arnott and Dana Marlin.
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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: December 9, 1996
BRIGHTPOINT, INC.
By_______________________________
Name: J. Mark Howell
Title: Executive Vice President
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BRIGHTPOINT, INC.
6402 Corporate Drive
Indianapolis, Indiana
As of October 1, 1996
SAFKONG HOLDINGS LIMITED
Attn: John MacLean-Arnott, President
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MARRIOTT INVESTMENT & TRADE INC.
Attn: Dana Marlin, President
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_____________________________________
Re: Brightpoint International Ltd. (the "Company")
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Gentlemen:
This letter is to confirm our prior agreement in principle,
effective as of October 1, 1996 (the "Effective Date"), of the parties hereto
with respect to the purchase by Brightpoint, Inc. (the "Purchaser") from
Technology Resources International Ltd. (the "Seller"), each of Safkong Holdings
Limited ("Safkong") and Marriott Investment & Trade Inc. ("Marriott" and,
together with Safkong, the "Selling Stockholders") and each of John MacLean-
Arnott ("Arnott") and Dana Marlin ("Marlin" and, together with Arnott, the
"Principals") of 200 shares of the common stock, par value $.01 per share, of
the Company (the "Shares") owned by the Seller (constituting fifty percent (50%)
of the issued and outstanding shares of Common Stock), upon the terms and
conditions hereinafter set forth.
1. Purchase Price. In full consideration for the transfer of
the Shares, the Purchaser shall deliver, or cause to be delivered, to the Seller
within ten (10) business days of the date of execution of this letter by the
Seller, the Selling Stockholders and the Principals and delivery of certificates
representing the Shares (together with stock powers duly endorsed), free and
clear of any liens, claims or encumbrances of any nature whatsoever, duly
endorsed for transfer to the Purchaser, the following:
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October 1, 1996
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a. Cash, in the form of bank or cashier's check, in
the sum of Four Million U.S. dollars (US$ 4,000,000);
b. 400,000 shares of the common stock, par value $.01
per share, of the Purchaser (the "BPI Stock"); and
c. Release, in the form annexed hereto and to be
executed by the Company, of Safkong from any and all sums due and owing by
Safkong, as maker under that promissory note, dated July 1, 1996, in the initial
principal amount of US$ 1,000,000, with the Purchaser (the "Note"), which Note
shall be cancelled; provided that all accrued and unpaid interest shall be paid
at the Closing.
2. Representations and Warranties of the Seller. Each of the
Seller, the Selling Stockholders, and their respective principals, Arnott and
Marlin, jointly and severally, represent and warrant to the Purchaser that:
a. The Seller and each of the Selling Stockholders is
a corporation duly organized, validly existing and in good standing under the
laws of the respective jurisdiction of its formation, with full corporate power,
right, legal capacity and authority to enter into this Agreement and to carry
out its obligations hereunder, and this Agreement has been duly and validly
authorized by all necessary corporate action and constitutes the valid and
binding obligation of the Seller and the Selling Stockholders, enforceable
against the Seller and the Selling Stockholders, in accordance with its terms;
b. Each of the Principals has the right, power, legal
capacity and authority to enter into this Agreement and to carry out his
respective obligations hereunder, and this Agreement constitutes the valid and
binding obligation of the Principals, enforceable against each such Principal,
in accordance with its terms.
c. The sale of the Shares to the Purchaser by the
Seller will not conflict with or constitute an event of default under or breach
of any agreement, document or instrument to which the Seller, the Selling
Stockholders or the Principals is a party, or any law, rule or regulation or
court order applicable to either the Seller, the Selling Stockholders or the
Principals;
d. The Seller is the record and beneficial owner of
the Shares and has good and marketable title to such Shares, free and clear of
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October 1, 1996
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any and all liens, claims, security interest, pledges, charge and encumbrances
of any nature whatsoever (the "Liens"). All of the Shares has been duly
authorized, validly issued, fully paid and nonassessable and the Seller has
complete and unrestricted power and the unqualified right to sell, assign,
transfer and deliver the Shares to the Purchaser, and upon delivery to the
Purchaser of the certificates representing the Shares, either endorsed in blank
for transfer or together with appropriately executed stock powers with respect
thereto, the Purchaser shall acquire good and marketable title to the Shares,
free and clear of any Liens; and
e. None of the representations or warranties made by
the Seller, the Selling Stockholders or the Principals in this Agreement are
false or misleading with respect to any fact, or omit to state any fact
necessary in order to make the statements herein contained not misleading.
3.Representations and Warranties of the Purchaser. The
Purchaser represents and warrants to the Seller that:
a. It is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with full
corporate power, right, legal capacity and authority to enter into this
Agreement and to carry out its obligations hereunder, and this Agreement, having
been duly and validly authorized by all necessary corporate action, constitutes
the valid and binding obligation of the Purchaser enforceable against the
Purchaser, in accordance with its respective terms; and
b. The BPI Stock, when issued to the Seller, will be
duly authorized and validly issued, fully paid and non-assessable, will be
delivered hereunder free and clear of any lien, claim, security interest, pledge
or other encumbrance of any nature whatsoever, except (i) as set forth herein
and (ii) that the BPI Stock will be "restricted securities" as such term is
defined in the rules and regulations of the Securities and Exchange Commission
and will be subject to restrictions on transfers pursuant to such rules and
regulations and state securities laws.
4. Additional Representations, Warranties and Covenants.
a. The Seller, the Selling Stockholders and each of
the Principals, jointly and severally, acknowledges and understands that (A) the
BPI Stock have not been registered under the Securities Act of 1933, as amended
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October 1, 1996
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(the "Act"), or the securities laws of any state, based upon applicable
exemptions from such registration requirements; (B) the BPI Stock are
"restricted securities," as said term is defined in Rule 144 of the Rules and
Regulations promulgated under the Act; (C) the BPI Stock may not be sold or
otherwise transferred unless they have been first registered under the Act and
all applicable state securities laws, or unless exemptions from such
registration provisions are available with respect to said resale or transfer;
(D) a legend to the foregoing effect shall be placed on the certificate or
certificates representing the BPI Stock; and (E) stop transfer instructions with
respect to the foregoing will be placed with the transfer agent, if any, for the
BPI Stock.
b. The Seller, Selling Stockholders and each of the
Principals, jointly and severally, hereby represents and warrants to, and
covenants with, the Purchaser and the Company that:
i) the Seller has had a reasonable
opportunity to ask questions of and receive answers from the Company
concerning the Purchaser, the Company and the BPI Stock, and all such
questions, if any, have been answered to the full satisfaction of the
undersigned;
ii) the Seller has such knowledge and
expertise in financial and business matters and is capable of
evaluating the merits and risks involved in acquiring the BPI Stock;
iii) in evaluating this investment, the
Seller has consulted with its or his, as the case may be, own
investment and/or legal and/or tax adviser and has concluded that the
acquiring the BPI Stock is appropriate in light of its or his, as the
case may be, overall investment objectives and financial situation;
iv) no representations or warranties have
been made by the Purchaser, the Company or any agent, employee or
affiliate of the Purchaser or the Company and, in entering into this
transaction, the Seller is not relying upon any information other than
the results of its or his, as the case may be, independent
investigation;
v) the Seller is acquiring the BPI Stock
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October 1, 1996
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solely for its or his own account, for investment purposes only, and
not with a view towards the resale or distribution thereof; it being
understood and acknowledged that the Seller will not sell or otherwise
transfer any of the BPI Stock, or any interest therein, unless and
until (A) said BPI Stock shall have first been registered under the Act
and all applicable state securities laws; or (B) the Seller shall have
first delivered to the Company a written opinion of counsel
(which counsel and opinion (in form and substance) shall be reasonably
satisfactory to the Company), to the effect that the proposed sale or
transfer is exempt from the registration provisions of the Act and all
applicable state securities laws; and
vi) the Seller is an "accredited investor,"
as such term is defined in Regulation D of the Rules and Regulations
promulgated under the Act;
5. Lock-Up of BPI Stock. The Seller covenants and
agrees hereby that:
a. Except as otherwise set forth herein, until two
(2) years after the Effective Date the Seller will not, without the prior
written consent of the Purchaser, directly or indirectly, sell, offer for sale,
transfer, assign, hypothecate, pledge or otherwise dispose of the BPI Stock
transferred to it pursuant to this Agreement. Any subsequent sale shall be made
pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended.
b. Notwithstanding the foregoing, the restrictions
set forth in Section 5(a) shall terminate immediately upon a Change of Control.
For purposes of this Section 5, a "Change of Control" shall be deemed to occur
upon (a) the actual acquisition or the execution of an agreement to acquire 20%
or more of the voting securities of the Purchaser by any person or entity not
affiliated with the Seller (other than pursuant to a bona fide underwriting
agreement relating to a public distribution of securities of the Purchaser), (b)
the commencement of a tender or exchange offer for more than 20% of the voting
securities of the Purchaser by any person or entity not affiliated with the
Seller, (c) the commencement of a proxy contest against the management for the
election of a majority of the Board of Directors of the Purchaser (the "Board")
if the group conducting the proxy contest owns, has or gains the power to vote
at least 20% of the voting securities of the Purchaser, or (d) a vote by the
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October 1, 1996
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Board to merge, consolidate, or sell all or substantially all of the assets of
the Purchaser to any person or entity not affiliated with the Seller.
c. In order to enable the Purchaser (or its
stockholders) to enforce the Seller's covenant in Section 5(a) , the Seller
consents to the Purchaser imposing transfer instructions consistent hereto with
the transfer agent of the Purchaser's securities with respect to any BPI Stock
until the end of such period.
6. Shareholder and Asset Purchase Agreement. Except as
herein modified, all of the remaining provisions of the Shareholder
and Asset Purchase Agreement, dated July 1, 1996, among the parties
hereto and the Company remain in full force and effect.
7. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Indiana without regard to
its choice of law principles. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the States of Indiana or New York and of the United States located in the
States of Indiana or New York (the "Governing Courts") for any litigation
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such litigation
in the Governing Courts and agrees not to plead or claim that such litigation
brought in the Governing Courts has been brought in an inconvenient forum.
8. Miscellaneous. This Agreement (i) may only be modified by a
written instrument executed by the party to be charged with such modification;
(ii) sets forth the entire agreement of the parties hereto with respect to the
subject matter hereof; and (iii) shall inure to the benefit of, and be binding
upon, the parties hereto and their respective heirs, legal representatives,
successors and assigns.
9. Counterparts. This Agreement may be executed in one
or more counterparts.
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October 1, 1996
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth below.
BRIGHTPOINT, INC.
Dated: By: /s/ J. Mark Howell
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Name:
Title:
BRIGHTPOINT INTERNATIONAL LTD.
Dated: By: /s/ J. Mark Howell
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Name:
Title:
TECHNOLOGY RESOURCES INTERNATIONAL
LTD.
Dated: By: /s/ Jean MacLean-Arnott
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Name:
Title:
SAFKONG HOLDINGS LIMITED
Dated: By: /s/ John MacLean-Arnott
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John MacLean-Arnott, President
MARRIOTT INVESTMENT & TRADE INC.
Dated: By: /s/ Dana Marlin
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Dana Marlin, President
Dated: /s/ John MacLean-Arnott
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JOHN MacLEAN-ARNOTT
Dated: /s/ Dana Marlin
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DANA MARLIN
