<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 1998.
REGISTRATION NO. 333-58863
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO.1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRIGHTPOINT, INC.
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
DELAWARE 6402 CORPORATE DRIVE 35-1778566
(State or other INDIANAPOLIS, IN 46278 (IRS employer
jurisdiction of (317) 297-6100 identification
incorporation or (Address, including zip code, and telephone number, including number)
organization) area code, of registrant's principal executive offices)
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J. MARK HOWELL, PRESIDENT
BRIGHTPOINT, INC.
6402 CORPORATE DRIVE
INDIANAPOLIS, IN 46278
(317) 297-6100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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COPY TO:
Robert J. Mittman, Esq.
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 885-5555
Facsimile: (212) 885-5001
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] _____
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================
PROPOSED
MAXIMUM PROPOSED
TITLE OF EACH AMOUNT OFFERING MAXIMUM AMOUNT OF
CLASS OF SECURITIES TO BE PRICE PER AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) SECURITY(2) OFFERING PRICE(2) FEE
- ----------------------- ------------- ----------- ----------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value 224,574 (3) $17.13 $3,845,830 $1,134.52
$.01 per share
Previously paid $ 282.71
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Amount Due $ 851.81
=========================================================================================
</TABLE>
(1) All of the shares of Common Stock being registered hereby are being
offered for the account of Selling Stockholders who acquired such
shares in private transactions. No other shares of the Company's
Common Stock are being registered pursuant to this offering.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended
("Act"), based upon a price of $17.13 per share, the average of the
high and low sale prices as reported in the consolidated reporting
system (NASDAQ) for the registrant's Common Stock on July 21, 1998.
(3) Pursuant to Rule 416 of the Act there are also being registered
hereunder such additional shares as may be issued to the Selling
Stockholders because of any future stock dividends, stock
distributions, stock splits or similar capital readjustments.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 3
PRELIMINARY PROSPECTUS DATED JULY 24, 1998
SUBJECT TO COMPLETION
BRIGHTPOINT, INC.
224,574 SHARES OF COMMON STOCK
This prospectus relates to an offering by certain selling stockholders
(the "Selling Stockholders") of an aggregate of up to 224,574 shares of the
Company's Common Stock $.01 par value (the "Common Stock"). All of the 224,574
shares of Common Stock are being offered for resale by such Selling Stockholders
pursuant to this Prospectus.
The Common Stock may be offered from time to time by the Selling
Stockholders through ordinary brokerage transactions in the over-the-counter
markets, in negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at negotiated prices. The Company will not receive any of
the proceeds from the sale of Common Stock by the Selling Stockholders.
The Common Stock is traded on the NASDAQ National Market under the
symbol "CELL". On July 22, 1998, the closing sale price of the Common Stock as
reported by NASDAQ was $17.0625.
------------------
THE SECURITIES OFFERED HEREBY INVOLVE CERTAIN RISKS.
SEE "RISK FACTORS" COMMENCING ON PAGE 4.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is July ________, 1998.
<PAGE> 4
SPECIAL INFORMATION REGARDING FORWARD LOOKING INFORMATION
Certain statements in this Prospectus or in the documents incorporated
by reference herein constitute "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. Such forward-looking
statements involve known and unknown risks, uncertainties and other factors
which may cause the actual results, performance or achievements of the Company
to be materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among others, the following; the ability to hire and retain key personnel;
successful completion and integration of future acquisitions; relationships with
and dependence on third-party wireless communications equipment manufacturers
and suppliers, network operators and other providers of wireless communications
logistics services; uncertainties relating to business and economic conditions
in markets in which the Company operates; uncertainties relating to government
and regulatory policies and other political risks; uncertainties relating to
customer plans and commitments; dependence on the wireless communications
industry; pricing and availability of wireless communications equipment
materials and inventories; rapid technological developments and obsolescence in
the wireless communications industry; potential performance issues with
suppliers and customers; governmental export and import policies; global trade
policies; worldwide political stability and economic growth; the highly
competitive environment in which the Company operates; potential entry of new,
well-capitalized competitors into the Company's markets; changes in the
Company's capital structure and cost of capital; the Company's continued
ability, through sales growth, to absorb the increasing costs incurred and to be
incurred in connection with its expansion activities and provision of
value-added logistics services; and uncertainties inherent in international
operations and foreign currency fluctuations. The words "believe", "expect",
"anticipate", "intend" and "plan" and similar expressions identify
forward-looking statements. Readers are cautioned not to place undue reliance on
these forward-looking statements, which speak only as of the date the statement
was made. See "Risk Factors."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports and
other information filed by the Company with the Commission can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices: 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and 7 World Trade Center, 13th Floor, New York, New York
10048. Copies of such materials can be obtained at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Electronic filings made by the Company through the
Commission's Electronic Data Gathering, Analysis and Retrieval System are
publicly available through the Commission's worldwide web site
(http://www.sec.gov).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission are incorporated herein by reference and shall be deemed a part
hereof:
(a) Annual Report on Form 10-K for the fiscal year ended December
31, 1997, as amended on February 25, 1998 and March 5, 1998;
(b) Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998;
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(c) Current Report on Form 8-K dated April 1, 1998; and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A declared
effective April 7, 1994, together with any amendment or report
filed with the Commission for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the securities hereby shall be deemed to be
incorporated by reference herein and to be a part hereof on the date of filing
of such documents. Any statement incorporated herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus or the Registration Statement of which it is a part.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WITH RESPECT TO THE
COMPANY THAT ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE
AVAILABLE WITHOUT CHARGE TO ANY PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM
THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST TO MR. PHILLIP A.
BOUNSALL, BRIGHTPOINT, INC., 6402 CORPORATE DRIVE, INDIANAPOLIS, INDIANA 46278,
TELEPHONE: (317) 297-6100.
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<PAGE> 6
PROSPECTUS SUMMARY
THE COMPANY
Brightpoint is a leading provider of distribution and value-added
logistics services to the wireless communications industry. The Company
facilitates the effective and efficient distribution of wireless handsets and
related accessories from leading manufacturers, under brand names such as Nokia,
Ericsson, Motorola, Siemens, Philips and Samsung, to network operators, agents,
resellers, dealers and retailers in the wireless communications market. The
Company's distribution services include purchasing, marketing, selling,
warehousing, picking, packing, shipping and "just-in-time" delivery of wireless
handsets and accessories. Its value-added logistics services include, among
others, support of prepaid programs, inventory management, product fulfillment,
kitting and customized packaging, light assembly and end-user support services.
The Company is one of the largest dedicated distributors of wireless handsets
and accessories in the world, with operations centers and/or sales offices in
Argentina, Australia, Brazil, China (including Hong Kong), France, Germany,
Ireland, Mexico, the Netherlands, New Zealand, the Philippines, Poland, South
Africa, Sweden, Taiwan, the United Arab Emirates, the United Kingdom, the United
States and Venezuela, and provides its services to a customer base of more than
10,000 network operators, manufacturers, agents, resellers, dealers and
retailers in over 75 countries and on six continents.
The Company's principal executive offices are located at 6402 Corporate
Drive, Indianapolis, Indiana 46278, and its telephone number is (317) 297-6100.
RISK FACTORS
Prospective investors should consider carefully the following risk
factors before purchasing any shares of the Common Stock offered hereby.
SIGNIFICANT OUTSTANDING INDEBTEDNESS; LOAN COVENANTS AND SECURITY INTERESTS
As of June 30, 1998, the Company had approximately $76 million in
outstanding borrowings and an aggregate of $8 million in letters of credit
outstanding under its senior secured revolving credit facility with The First
National Bank of Chicago and Bank One, Indiana, NA, as co-agents for a group of
banks (collectively, the "Banks"). On May 13, 1998 the Company entered into a
new senior secured credit facility (the "Credit Facility") with the Banks, which
Credit Facility provides availability to the Company and its subsidiaries of up
to $225 million of credit in the aggregate. All of the indebtedness outstanding
under the Credit Facility constitutes Senior Indebtedness of the Company. In
addition, all of the Company's assets located in the United States and 65% of
the capital stock of certain of the Company's subsidiaries domiciled outside of
the United States are pledged to the Banks as collateral, and the Company is
substantially prohibited from incurring additional indebtedness, either of which
terms could, under certain circumstances, limit the Company's ability to
implement its expansion plans. Besides certain net worth and other financial
covenants, the Credit Facility limits or prohibits the Company, subject to
certain exceptions, from declaring or paying cash dividends, making capital
distributions or other payments to stockholders, merging or consolidating with
another corporation or selling all or substantially all of its assets. In the
event of a violation by the Company of any of its loan covenants, other default
by the Company on its obligations or a change of control, the Company's
indebtedness could become immediately due and payable and the Banks could
foreclose on the Company's assets.
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On March 11, 1998, the Company completed the issuance of zero-coupon,
subordinated, convertible notes due in the year 2018 (the "Bonds") with an
aggregate face value of $380.0 million ($1,000 per bond) and a yield to maturity
of 4.00%. The Bonds are subordinated to all existing and future senior
indebtedness of the Company and all other liabilities, including trade payables,
of the Company's subsidiaries. The Bonds resulted in gross proceeds to the
Company of approximately $172.1 million (issue price of $452.89 per Bond) and
require no periodic cash payments of interest. At June 30, 1998, the Bonds had
a carrying value of $174.2 million.
FUTURE OPERATING RESULTS
For the years ended December 31, 1996 and 1997 and the six months
ended June 30, 1998, 88%, 88% and 83%, respectively, of the Company's net sales
consisted of wireless handset sales, a segment of its business which operates on
a high-volume, low-margin basis. In addition, the Company's operating expenses
have increased significantly and can be expected to continue to increase
significantly in connection with the Company's expansion activities, including
the increasing provision of value-added logistics services. Accordingly, the
Company's future profitability will depend upon corresponding increases in
sales. The Company also believes that, as the number of wireless networks
increases as a result of deregulation, increased competition and the emergence
of new technologies, a growing industry emphasis on containing costs could
further reduce the gross margins realized by the Company on sales of wireless
handsets. Future events, including unanticipated expenses, increased price
competition, unfavorable general economic conditions, currency exchange rate
fluctuations, product returns and recalls and uncollectible accounts receivable,
could have an adverse effect on the Company's operating results. There can be no
assurance that the Company's rate of sales growth will continue in the future or
that the Company's future operations will continue to be profitable.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS
For the years ended December 31, 1996 and 1997 and the six months
ended June 30, 1998, net sales in markets outside of North America represented
approximately 51%, 74%, and 75% respectively, of the Company's total net sales.
The global aspect of the Company's business subjects it to a number of
additional risks, including increased credit risk, customs duties, import quotas
and other trade restrictions, potentially greater inflationary pressures,
fluctuations in foreign currency exchange rates, shipping delays, failure or
material interruption of wireless systems and services, and international
political, regulatory and economic developments, all of which could have a
material adverse effect on the Company. In addition to its facilities in the
United States, the Company maintains operations centers and/or sales offices in
numerous territories and countries. The Company is therefore subject to the
risks associated with changes in the social, political, regulatory and economic
conditions inherent in foreign operations, including changes in the laws and
policies that govern foreign investment and international trade in territories
and countries where the Company currently has operations, as well as, to a
lesser extent, changes in United States laws and regulations relating to foreign
investment and trade. Any such social, political, regulatory or economic changes
could expose the Company to, among other things, the risk of wireless product
supply interruption or significant increases in wireless product prices.
Accordingly, there can be no assurance that any such changes in social,
political, regulatory or economic conditions will not have a material adverse
effect on the Company.
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<PAGE> 8
The Company maintains an operations center and sales office in Hong
Kong, and, for the year ended December 31, 1997, sales through the Company's
Hong Kong operations represented approximately 30% of the Company's net sales.
On July 1, 1997, Hong Kong became a Special Administrative Region of the
People's Republic of China ("China"). There can be no assurance that there will
not be an adverse change in existing political, economic or commercial
conditions in Hong Kong or that any such change would not have a material
adverse effect on the Company's results of operations or financial condition.
Furthermore, the Company cannot predict the effect that changes in the social,
economic, regulatory and political conditions in China could have on its
operations in Hong Kong. For instance, the Company's operations in Hong Kong
could be materially adversely affected if the "most-favored nation" status
granted to China by the United States government for trade and tariff purposes,
which is currently reviewed annually by the United States government, was
terminated.
In addition, a significant portion of the Company's sales outside the
United States are denominated in foreign currencies. Accordingly, a decrease in
the value of foreign currencies relative to the United States dollar could
result in a significant decrease in United States dollar revenues reported by
the Company. Due to the number of currencies involved in the Company's
international sales and the volatility of currency exchange rates, the Company
cannot predict the effect of exchange rate fluctuations on future operating
results. On occasion, the Company enters into forward exchange swaps, futures or
options contracts as a means of hedging its currency transaction and balance
sheet translation exposures; however, the Company's management has had limited
prior experience in engaging in such transactions. Moreover, there can be no
assurance that any hedging will effectively limit the Company's exposure to a
decline in operating results due to foreign currency translation.
DEPENDENCE ON TREND TOWARD OUTSOURCING
The Company's growth depends in large part on the growing trend among
wireless equipment manufacturers, network operators and resellers to outsource
some or all of their product management functions, such as marketing,
programming, packaging, end-user fulfillment and returns management, to
specialists such as the Company. Although the Company believes that increasing
competition, deregulation and technological developments within the wireless
communications industry will continue to support this trend, there can be no
assurance that wireless equipment manufacturers and network operators will not
elect to maintain such services internally. A significant change in this trend,
or the onset of a trend in the wireless communications industry not to use, or
to reduce the use of, outsourced value-added logistics services such as those
provided by the Company, could have a material adverse effect on the Company.
DEPENDENCE ON THIRD-PARTY SUPPLIERS
The Company purchases all of the wireless handsets and accessories it
sells from third-party wireless communications equipment manufacturers, dealers
and network operators. For the years ended December 31, 1996 and 1997, the
Company's three largest sources of wireless handsets and accessories, in the
aggregate, accounted for approximately 51% and 65%, respectively, of the
Company's product purchases. For the year ended December 31, 1996, the Company's
three largest suppliers (Nokia, Ericsson and Lucent Technologies Inc.) accounted
for approximately 33%, 12% and 6%, respectively, of the Company's product
purchases. For the year ended December 31, 1997, the Company's three largest
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suppliers (Nokia, Ericsson and Siemens) accounted for approximately 28%, 28% and
9%, respectively, of the Company's product purchases. The Company is dependent
on the ability of its suppliers to provide adequate inventories of currently
popular brand name products on a timely basis and on favorable pricing terms.
Other than with some of its primary suppliers, the Company does not typically
maintain agreements with its suppliers. Moreover, as is typical in the industry,
the agreements which the Company does maintain are generally non-exclusive,
require the Company to satisfy minimum purchase requirements, can be terminated
on short notice and provide for certain territorial restrictions. The Company
generally purchases products pursuant to purchase orders placed from time to
time in the ordinary course of business. Although the Company believes that its
relationships with its suppliers are satisfactory, the loss of certain of the
Company's principal suppliers or substantial price increases imposed by any such
supplier, in the absence of readily available alternative sources of supply,
would have a material adverse effect on the Company. There can be no assurance
that suppliers will continue to offer competitive products to the Company, that
the Company will be able to obtain products on favorable terms or that the
Company will not be subject to the risk of price fluctuations and periodic
delays. Failure or delay by principal suppliers in supplying competitive
products to the Company on favorable terms would materially adversely affect the
Company's operating margins and the Company's ability to obtain and deliver
products on a timely and competitive basis or at all.
INTENSE INDUSTRY COMPETITION
The markets for wireless handsets and accessories are characterized by
intense price competition and significant price erosion over the life of a
product. In addition, the wireless communications equipment distribution
industry has, in the past, been characterized by low barriers to entry. Although
entry barriers are expected to rise as the market requirement shifts from pure
distribution services to a mix of distribution services and value-added
logistics services (due to the increased infrastructure costs, expanded human
resource requirements and advanced management and information systems
capabilities that the value-added logistics services segment of the business
mandates), the Company competes and expects that it will continue to compete
with numerous well-established distributors and manufacturers of wireless
communications equipment, including the Company's suppliers, and wireless
network operators, certain of which possess greater financial and other
resources than the Company. Certain of these competitors may also market the
same or similar products directly to the Company's customers and have the
financial resources to withstand substantial price competition and to implement
extensive advertising and promotional programs, both generally and in response
to efforts by additional competitors to enter into new markets or introduce new
products. As a provider of value-added logistics services, the Company also
competes with other distributors and with logistics services companies. The
Company's ability to continue to compete successfully will be largely dependent
on its ability to maintain its current industry relationships and anticipate and
respond to various competitive factors affecting the industry, including new or
changing outsourcing requirements, new well-capitalized competitors, new
products which may be introduced, changes in consumer preferences, demographic
trends, international, national, regional and local economic conditions and
discount pricing and promotion strategies by competitors. There can be no
assurance that the Company will be able to continue to compete successfully,
particularly as cellular markets mature and the Company seeks to enter into new
markets and market new products.
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ABILITY TO MANAGE AND SUSTAIN GROWTH; RISKS ASSOCIATED WITH FUTURE ACQUISITIONS
The Company has experienced rapid international growth recently
through, among other things, a series of strategic acquisitions and anticipates
that continued growth will be driven in large part by the Company's continuing
ability to successfully acquire additional businesses or establish strategic
alliances with companies which the Company believes are compatible with its
business; secure adequate supplies of competitive products on a timely basis and
on commercially reasonable terms; continually turn its inventories and collect
its accounts receivable; and successfully develop additional, and maintain its
existing, key relationships with leading network operators and manufacturers and
dealers of wireless handsets and accessories. The Company's success in
sustaining growth will also be dependent upon its ability to hire and retain the
additional qualified management, marketing and other personnel that will be
needed to successfully manage continuing growth (including monitoring
operations, controlling costs and maintaining effective management, inventory
and credit controls). The Company's growth prospects could be adversely affected
by a decline in the wireless communications industry generally or in one of its
regional divisions in particular, either of which could result in reduction or
deferral of expenditures by prospective customers. There can be no assurance
that the Company will continue to be able to manage its expanding operations
effectively or that it will be able to maintain or accelerate its growth. In
addition, there can be no assurance that the Company will be able to make
additional acquisitions or that the Company will be able to successfully
integrate into its operations any new businesses which it may acquire. Any
inability to do so, particularly in instances in which the Company has made
significant capital investments, could have a material adverse effect on the
Company.
INVENTORY OBSOLESCENCE AND TECHNOLOGICAL CHANGE
The markets for wireless communications equipment are characterized by
rapidly changing technology and evolving industry standards, often resulting in
product obsolescence or short product life cycles. Accordingly, the Company's
success is dependent upon its ability to anticipate technological changes in the
industry and to continually identify, obtain and successfully market new
products that satisfy evolving industry and customer requirements. The Company
has made increased commitments of capital to purchase product inventories.
Additional concentrations of capital in inventory increase the risk of loss from
possible inventory obsolescence. There can be no assurance that competitors or
manufacturers of wireless equipment will not market products which have
perceived or actual advantages over the Company's products or which render them
obsolete or less marketable. In addition, the use of emerging wireless
communications technologies, including wireless local loop and satellite-based
communications systems, may reduce demand for existing cellular and PCS
products. The Company also expects that companies which have developed or are
developing new technologies or products in related market segments will
commercialize technologies which compete with existing cellular and PCS
technology. Certain of such technologies, upon widespread commercial
introduction, will materially change the types of products sold by the Company
and its suppliers and result in significant price competition. There can be no
assurance that the Company's existing customers or consumers will be willing,
for financial or other reasons, to purchase new equipment necessary to utilize
these new technologies or that product obsolescence will not result in
significantly increased inventories of unsold products. Moreover, complex
hardware and software contained in new wireless handsets could contain defects
which become apparent subsequent to widespread commercial use, resulting in
product recalls and returns.
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RISKS RELATING TO STRATEGIC RELATIONSHIPS AND STRATEGIC FINANCING
As part of its expansion strategy, the Company has entered into, and
intends to continue to enter into, strategic relationships and joint ventures
with, among others, wireless equipment manufacturers, network operators and
other providers of wireless communications logistics services. In connection
with such strategic relationships, the Company may enter into distribution
and/or value-added logistics services agreements with, and provide equity or
debt financing to, its strategic partners. The Company's ability to achieve
profitability through such strategic relationships will be dependent in part
upon its strategic partners' economic viability, success and motivation, and the
amount of time and resources they devote to such alliances. There can be no
assurance that the Company will receive any business from future alliances, that
any business received will be significant or at the level anticipated, or that
profits, if any, received as a result of future alliances will offset any
possible losses on investments made or financing extended by the Company to
enter into its strategic relationships. A loan to, or an investment in, a
strategic partner will be subject to many of the same risks to which the
strategic partner is subject in seeking to operate and grow its businesses, and
there can be no assurance that the Company will achieve an acceptable return on
its investment within an acceptable period, if at all. In December 1996, the
Company entered into a distribution agreement with Pocket Communications, Inc.
("Pocket"), a PCS network operator, pursuant to which the Company was to
distribute custom wireless handsets provided by Pocket. Simultaneous with its
execution of such agreement, the Company purchased $5 million in convertible
debentures of Pocket. In March 1997, Pocket filed for protection under Chapter
11 of the United States Bankruptcy Code. Accordingly, the Company recorded $5
million of losses on its investment in Pocket during the quarter ended March 31,
1997. A decline in the financial prospects of strategic partners could have a
material adverse effect on the Company.
ACCOUNTS RECEIVABLE AND CONTRACT FINANCING RECEIVABLES; COLLECTION AND CREDIT
RISKS
The Company's trade accounts receivable, less allowance for doubtful
accounts, at December 31, 1996 and 1997 and June 30, 1998 was approximately
$113 million, $213 million and $188 million, respectively. In addition, the
Company began, in 1997, to offer financing of inventory and receivables to
certain customers under contractual arrangements. The resulting contract
financing receivables at June 30, 1998 were approximately $14.4 million. Delays
in collection or the uncollectibility of such receivables could have a material
adverse effect on the Company. At June 30, 1998, the Company's allowance for
doubtful accounts was approximately $4.1 million, which the Company believes is
currently adequate for the size and nature of its receivables. However, in
connection with the Company's continued expansion, the Company intends to offer
open account terms to additional customers, which will subject the Company to
increased credit risk, particularly in the event that any such receivables
represent sales to a limited number of customers or are concentrated in
particular geographic markets, and could require the Company to increase its
allowance for doubtful accounts.
POSSIBLE FLUCTUATIONS IN OPERATING RESULTS; SEASONALITY
The Company's operating results are influenced by a number of seasonal
factors in the different countries and markets in which it operates. Such
results may vary from period to period as a result of purchasing patterns of
customers in different markets, the timing of introduction of new products by
the Company's suppliers and competitors, variations in sales by distribution
channels, product availability and
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pricing and other seasonal factors such as those associated with consumer
electronics and retail sales which tend to result in increased volume in the
latter part of the calendar year. While the overall growth of the Company's
business has reduced the impact of such factors on the Company's operating
results, seasonality contributes to the increase in the Company's sales in the
fourth quarter of its fiscal years. Unanticipated events, including delays in
securing adequate inventories of competitive products at the time of peak sales,
or significant decreases in sales during such periods, could have a material
adverse effect on the Company. There can be no assurance that the foregoing
factors will not result in significant fluctuations in operating results in the
future.
DEPENDENCE ON KEY PERSONNEL
The success of the Company depends in large part on the abilities and
continued service of its executive officers and other key employees. Although
the Company has entered into employment agreements with several of such officers
and employees, there can be no assurance that the Company will be able to retain
their services. The loss of executive officers or other key personnel could have
a material adverse effect on the Company. The Company also has non-compete
agreements with its executive officers and certain of its existing key
personnel; however, courts are at times reluctant to enforce such agreements. In
addition, in order to support its continued growth, the Company will be required
to effectively recruit, develop and retain additional qualified management. The
inability of the Company to attract and retain such necessary personnel could
also have a material adverse effect on the Company.
UNCERTAINTY OF PROTECTION OF PROPRIETARY SOFTWARE
The Company's success is substantially dependent upon its proprietary
software applications relating to its information systems. The Company does not
currently hold any patents relating to its software and relies on trade secret
and copyright laws to protect its proprietary software. In addition, the Company
regularly enters into non-disclosure agreements with its key employees and
limits access to and distribution of its trade secrets and other proprietary
information. There can be no assurance that these measures will be adequate to
prevent misappropriation of its technology or that the Company's competitors
will not independently develop technologies that are substantially equivalent or
superior to the Company's technology, thereby eliminating one of the Company's
perceived competitive advantages. In addition, the laws of some countries do not
protect the Company's proprietary rights to the same extent as do the laws of
the United States. Finally, although the Company believes that its proprietary
software has been developed independently and does not infringe upon the
proprietary rights of others, there can be no assurance that the software does
not and will not so infringe or that third parties will not assert infringement
claims against the Company in the future.
RELIANCE ON TECHNOLOGY; RISK OF BUSINESS INTERRUPTION
The Company has invested significantly in sophisticated and specialized
information systems technology and has focused on the application of this
technology to provide customized value-added logistics services to wireless
communications equipment manufacturers and network operators. The Company
anticipates that it will be necessary to continue to develop new logistics
services and enhance its information systems in order to maintain its
competitiveness. In addition, the Company's sales and marketing efforts (a large
part of which are telemarketing based) are highly dependent on its computer and
telephone equipment, and the temporary or permanent loss of such equipment or
systems through casualty
-10-
<PAGE> 13
or operating malfunction, or a significant increase in the cost of telephone
services that is not recoverable through an increase in the price of the
Company's services, could have a material adverse effect on the Company. The
Company's property and business interruption insurance may not adequately
compensate the Company for all losses that it may incur in any such event.
DEPENDENCE ON LABOR FORCE
The Company's distribution and value-added logistics services are labor
intensive and the Company experiences high personnel turnover. A significant
number of the Company's employees are employed on a part-time basis. A higher
turnover rate among the Company's employees would increase the Company's
recruiting and training costs and decrease operating efficiencies and
productivity. Growth in the Company's business, together with seasonal increases
in net sales, require the Company to recruit and train personnel at an
accelerated rate from time to time. There can be no assurance that the Company
will be able to continue to hire, train and retain a significant labor force of
qualified employees when needed, or at all. In addition, a significant portion
of the Company's costs consist of wages to hourly workers. An increase in hourly
wages, costs of employee benefits, employment taxes or commission rates could
have a material adverse effect on the Company.
POSSIBLE MEDICAL RISKS ASSOCIATED WITH WIRELESS HANDSETS
Recent lawsuits have been filed against manufacturers of wireless
handsets alleging possible medical risks, including brain cancer, associated
with electromagnetic fields emitted by wireless communications handsets. To
date, there has been only limited research in this area, and such research has
not been conclusive as to what effects, if any, exposure to electromagnetic
fields emitted by wireless handsets has on human cells. The Company recognizes,
however, that the perception that health risks may exist could adversely affect
the Company's or its customers' ability to market wireless handsets. Inasmuch as
substantially all of the Company's revenues are derived, either directly or
indirectly, from sales of wireless handsets, future studies finding possible
health risks associated with the use of such products could have a material
adverse effect on the wireless communications industry and the Company. As a
distributor of wireless handsets, the Company may be subject to lawsuits filed
by plaintiffs alleging health risks. A successful claim against the Company
could have a material adverse effect on the Company.
POTENTIAL VOLATILITY OF PRICE OF THE COMMON STOCK
The market price of the Common Stock has risen substantially and, from
time to time, experienced significant fluctuations since the Company's initial
public offering in April 1994. The Common Stock is quoted on the Nasdaq National
Market, which market has experienced, and is likely to experience in the future,
significant price and volume fluctuations which could adversely affect the
market price of the Common Stock without regard to the operating performance of
the Company. In addition, the trading price of the Common Stock could be subject
to significant fluctuations in response to actual or anticipated variations in
the Company's quarterly operating results and other factors, such as the
introduction of new services, products or technologies by the Company, its
competitors or its suppliers or their competitors, changes in other conditions
or trends in the wireless communications industry, changes in governmental
regulation, changes in worldwide or regional economic conditions, changes in
securities analysts' estimates for the Company's, or its competitors' or
industry's, future performance or general
-11-
<PAGE> 14
market conditions. General market price declines or market volatility in the
future, or future declines or volatility in the prices of stocks for companies
in the wireless communications industry or the distribution or value-added
logistics services sectors of the wireless communications industry, could also
affect the market price of the Common Stock.
ANTI-TAKEOVER EFFECT OF CERTAIN CHARTER AND BY-LAW PROVISIONS AND THE
STOCKHOLDER RIGHTS PLAN
The Company's Certificate of Incorporation, as amended, authorizes the
issuance of "blank check" preferred stock with such designations, rights and
preferences as may be determined from time to time by the Board of Directors.
Accordingly, the Board of Directors is empowered, without stockholder approval,
to issue preferred stock with dividend, liquidation, conversion, voting or other
rights which could adversely affect the voting power or other rights of the
holders of the Company's Common Stock. In addition, the Company's Amended and
Restated By-Laws divide the Board of Directors into three classes serving
staggered three-year terms. The Company also has a Stockholders Rights Plan that
may make certain proposed acquisitions of the Company prohibitively expensive.
These charter and By-Law provisions and the Stockholders Rights Plan could make
it more difficult for a stockholder to effect certain transactions and make it
more difficult for a third party to acquire, or discourage a third party from
attempting to acquire, control of the Company. As a result, such provisions
could limit the price that certain investors might be willing to pay in the
future for shares of the Company's Common Stock.
USE OF PROCEEDS
The Company will receive no proceeds from any sales of shares of Common
Stock made from time to time hereunder. The Company has agreed to bear certain
expenses in connection with the registration of the Common Stock being offered
and sold by the Selling Stockholders.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 100 million
shares of Common Stock, par value $.01 per share, and one million shares of
preferred stock, par value $.01 per share (the "Preferred Stock"). At July 21,
1998, the Company had 52,023,774 shares of Common Stock issued and outstanding,
held of record by approximately 365 stockholders, and no shares of Preferred
Stock issued and outstanding.
The following description of the capital stock of the Company and
certain provisions of the Company's Certificate of Incorporation, as amended
(the "Certificate of Incorporation"), and its Amended and Restated By-Laws (the
"By-Laws") is a summary and is qualified in its entirety by the Certificate of
Incorporation and By-Laws, which are filed as exhibits to the Registration
Statement of which this Prospectus is a part.
COMMON STOCK
Except as required by law or by the Certificate of Incorporation,
holders of Common Stock are entitled to one vote for each share held of record
on all matters submitted to a vote of the holders of Common Stock. The holders
of Common Stock are not entitled to cumulative voting rights with respect
-12-
<PAGE> 15
to the election of directors. Subject to preferences that may be applicable to
any then outstanding Preferred Stock, holders of Common Stock are entitled to
receive ratably such dividends as may be declared by the Board of Directors out
of funds legally available therefor. In the event of a liquidation, dissolution,
or winding up of the Company, holders of the Common Stock are entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation
preference of any then outstanding Preferred Stock. Holders of Common Stock have
no preemptive rights and have no right to convert their Common Stock into any
other securities. There are no redemption or sinking fund provisions applicable
to the Common Stock. All outstanding shares of Common Stock are fully paid and
nonassessable. The Board of Directors may issue additional authorized shares of
Common Stock without further action by the stockholders.
PREFERRED STOCK
The Board of Directors has the authority, without further action by the
stockholders, to issue up to one million shares of Preferred Stock in one or
more series and to fix the rights, preferences, privileges and restrictions
thereof, including dividend rights, conversion rights, voting rights, terms of
redemption, liquidation preferences, and the number of shares constituting any
series or the designation of such series. The issuance of Preferred Stock could
adversely affect the voting power of holders of Common Stock and could have the
effect of delaying, deferring, or preventing a change in control of the Company.
The Company has no present plan to issue any shares of Preferred Stock other
than as it may be issued in connection with the Stockholders Rights Plan
described below. See "--Anti-takeover Effects of Certain Provisions of the
Company's By-Laws, Stockholders Rights Plan and Delaware Corporate Law."
ANTI-TAKEOVER EFFECTS OF CERTAIN PROVISIONS OF THE COMPANY'S
BY-LAWS, STOCKHOLDERS RIGHTS PLAN AND DELAWARE CORPORATE LAW
Certain By-Law provisions. The Company's By-Laws contain provisions
that could make more difficult the acquisition of control of the Company by
various means, such as a tender offer, open market purchases, a proxy contest or
otherwise. For instance, the Company's Board of Directors is divided into three
classes, as nearly equal in number as is reasonably possible, serving staggered
terms. One class of directors is elected at each annual meeting to serve a term
of three years. At least two annual meetings of stockholders, instead of one,
will be required to effect a change in a majority of the Company's Board of
Directors. In addition, special meetings of the stockholders may only be called
by a majority of the Board of Directors or the President of the Company, and the
Company's By-Laws establish advance notice procedures with regard to stockholder
proposals for annual or special meetings. Amendments to the staggered board
provision require a two-thirds vote of stockholders. The purposes of these
provisions are to discourage certain types of transactions which may involve an
actual or threatened change of control of the Company and encourage persons
seeking to acquire control of the Company to consult first with the Board of
Directors to negotiate the terms of any proposed business combination or offer.
The provisions are designed to reduce the vulnerability of the Company to an
unsolicited proposal for a takeover that does not contemplate the acquisition of
all outstanding shares or is otherwise unfair to stockholders of the Company, or
an unsolicited proposal for the restructuring or sale of all or part of the
Company.
Stockholders Rights Plan. In February 1997, the Company adopted a
Stockholders Rights Plan and declared a dividend of one preferred share purchase
right (a "Right") for each outstanding share of Common Stock. The dividend was
paid to holders of record of Common Stock as of the close of business
-13-
<PAGE> 16
on February 20, 1997 (the "Record Date"). Each Right entitles the registered
holder to purchase from the Company one one-thousandth of a share of Series A
Junior Participating Preferred Stock, par value $.01 per share (the "Preferred
Shares"), of the Company at a price of $115 per one one-thousandth of a
Preferred Share (the "Purchase Price"), subject to adjustment in certain
circumstances. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and Continental Stock
Transfer & Trust Company, as Rights Agent (the "Rights Agent"). A copy of the
Rights Agreement, which includes as Exhibit B the form of Rights Certificate and
as Exhibit C the Summary of Rights to Purchase Preferred Shares, is an exhibit
to the Registration Statement of which this Prospectus forms a part.
Rights are evidenced by and are transferable only in connection with
the Common Stock certificates outstanding prior to the Distribution Date (as
defined below). As soon as practical following the earlier to occur of (i) ten
days after a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") have acquired beneficial ownership of
15% or more of the outstanding Common Stock or (ii) ten business days (or such
later date as may be determined by action of the Board of Directors prior to
such time as any person or group becomes an Acquiring Person) after the
commencement of, or announcement of an intention to commence, a tender or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding Common Stock
(the "Distribution Date"), separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and such separate Right Certificates
alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date and will
expire on February 20, 2007, unless extended or unless the Rights are earlier
redeemed or exchanged by the Company, as described below. The Rights, the
Purchase Price, and the number of Preferred Shares or other securities or
property issuable upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution.
Preferred Shares will not be redeemable. Each Preferred Share will be
entitled to a minimum preferential quarterly dividend payment of $1.00 per share
but will be entitled to an aggregate dividend of 1,000 times the dividend
declared per share of Common Stock. In the event of liquidation, the holders of
the Preferred Shares will be entitled to a minimum preferential liquidation
payment of $1.00 per share but will be entitled to an aggregate payment of 1,000
times the payment made per share of Common Stock. Each Preferred Share will have
1,000 votes, voting together with the Common Stock. Finally, in the event of any
merger, consolidation or other transaction in which shares of Common Stock are
exchanged, each Preferred Share will be entitled to receive 1,000 times the
amount received per share of Common Stock.
In the event that any person or group of affiliated or associated
persons becomes an Acquiring Person, each holder of a Right, other than Rights
beneficially owned by the Acquiring Person or its affiliate, associate or
transferee (which will thereafter be void), will thereafter have the right to
receive that number of shares of Common Stock having a market value of two times
the exercise price of the Right. In the event that the Company is acquired in a
merger or other business combination transaction or 50% or more of its
consolidated assets or earning power are sold after a person or group has become
an Acquiring Person in a transaction with such Acquiring Person or group, each
holder of a Right will thereafter have the right to receive that number of
shares of common stock of the acquiring company having a market value of two
times the exercise price of the Right. In each case, there are exceptions for
transactions that have received the prior approval of the Board of Directors.
-14-
<PAGE> 17
At any time after any person or group becomes an Acquiring Person and
prior to the acquisition by such person or group of 50% or more of the
outstanding shares of Common Stock, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person or group which will
have become void), in whole or in part, at an exchange ratio of one share of
Common Stock per Right (subject to adjustment). At any time prior to any person
or group becoming an Acquiring Person, the Board of Directors of the Company may
redeem all of the outstanding Rights at a price of $.01 per Right, payable in
cash or Common Stock.
All of the provisions of the Rights Agreement may be amended by the
Company prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may not be amended in any manner which would
adversely affect the interests of the holders of the Rights (excluding the
interests of an Acquiring Person).
Delaware Anti-Takeover Law. The Company is subject to certain
anti-takeover provisions under Section 203 of the Delaware General Corporation
Law. In general, under Section 203, a Delaware corporation may not engage in any
business combination with any interested stockholder (a person that owns,
directly or indirectly, 15% or more of the outstanding voting stock of a
corporation or is an affiliate or associate of a corporation and was the owner
of 15% or more of the outstanding voting stock of the corporation at any time
within the prior three years), for a period of three years following the date
such stockholder became an interested stockholder, unless (i) prior to such date
the board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder, or (ii) upon consummation of the transaction which
resulted in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, or (iii) on or subsequent to
such date, the business combination is approved by the board of directors and
authorized at an annual or special meeting of stockholders, and not by written
consent, by at least 66 2/3% of the outstanding voting stock which is not owned
by the interested stockholder. The restrictions imposed by Section 203 will not
apply to a corporation if the corporation's original certificate of
incorporation contains a provision expressly electing not to be governed by this
section or the corporation by action of its stockholders adopts an amendment to
its certificate of incorporation or by-laws expressly electing not to be
governed by Section 203. The Company has not elected out of Section 203, and
thus the restrictions imposed by Section 203 apply to the Company. Such
provision could have the effect of discouraging, delaying or preventing a
takeover of the Company, which could otherwise be in the best interest of the
Company's stockholders, and have an adverse effect on the market price for the
Company's Common Stock.
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is Continental
Stock Transfer & Trust Company, New York, New York.
-15-
<PAGE> 18
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
Selling Stockholders:
<TABLE>
<CAPTION>
Beneficial
Ownership of
Shares of Common % of Shares
Selling Stock Prior to Shares to be Sold Shares Owned Owned After
Stockholder Offering in the Offering After Offering Offering
- ----------- --------------- --------------- -------------- -----------
<S> <C> <C> <C> <C>
Wireless
Stockroom, Inc. 118,213 63,230 54,983 *
Leung Chi Kong, Eric 361,344 161,344 200,000 *
- ---------------
* Less than one percent
</TABLE>
Wireless Stockroom, Inc. received its shares in connection with the Company's
acquisition of Wireless Fulfillment Services, LLC. Brian Firestone, the
President and a principal stockholder of Wireless Stockroom, Inc., is an
employee of Wireless Fulfillment Services, LLC, a subsidiary of the Company.
Leung Chi Kong, Eric became an employee of Brightpoint China Limited, a
subsidiary of the Company, during 1997, in connection with the Company's
acquisition of certain assets of Legend International (Asia) Limited, and
remains an employee.
PLAN OF DISTRIBUTION
The Common Stock will be offered and sold from time to time by the
Selling Stockholders as market conditions permit in the over-the-counter market,
or otherwise, at prices and terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The shares offered
hereby may be sold by one or more of the following methods without limitation:
(a) a block trade in which a broker or dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker or dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; (c) ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and (d) face-to-face transactions between sellers
and purchasers without a broker-dealer. In effecting sales, brokers or dealers
engaged by the Selling Stockholders may arrange for other brokers or dealers to
participate. Such brokers or dealers may receive commissions or discounts from
Selling Stockholders in amounts to be negotiated. Such brokers and dealers and
any other participating brokers or dealers may be deemed to be "underwriters"
within the meaning of the Act, in connection with such sales.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby was passed
upon for the Company by Tenzer Greenblatt LLP, New York, New York.
EXPERTS
The consolidated financial statements of Brightpoint, Inc. as of
December 31, 1997 and 1996 and for each of the three years in the period ended
December 31, 1997 appearing in the Company's Annual Report on Form 10-K/A for
the year ended December 31, 1997, filed with the Commission on March 5, 1998,
-16-
<PAGE> 19
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference,
which as to the year 1995 is based in part on the report of Coopers & Lybrand
L.L.P., independent accountants. The financial statements above are included in
reliance upon such reports given upon the authority of such firms as experts in
accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Commission, a Registration Statement
with respect to the Securities offered by this Prospectus. This Prospectus,
filed as part of such Registration Statement, does not contain all of the
information set forth in, or annexed as exhibits to, the Registration Statement,
certain portions of which have been omitted in accordance with the rules and
regulations of the Commission. For further information with respect to the
Company and this offering, reference is made to the Registration Statement,
including exhibits filed therewith, which may be inspected without charge at the
Office Of The Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Copies
of the Registration Statement may be obtained from the Commission at its
principal office upon payment of prescribed fees. The Commission also maintains
a Website that contains reports, proxy and information statements and other
information regarding registrants, such as the Company, that file electronically
with the Commission. The Commission's Website address is http://www.sec.gov.
Statements contained in this Prospectus as to the contents of any contract or
other document are not necessarily complete and, where the contract or other
document has been filed as an exhibit to the Registration Statement, each
statement is qualified in all respects by reference to the applicable document
filed with the Commission.
-17-
<PAGE> 20
===============================================================================
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations not contained in this Prospectus
and, if given or made, such information or representations must not be relied
upon as having been authorized by the Company, the Selling Stockholders or any
of their respective affiliates. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any securities other than the
securities offered by this Prospectus, or an offer to sell or a solicitation of
an offer to buy any securities offered hereby in any jurisdiction where, or to
any person to whom, it is unlawful to make such offer or sale. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information in this Prospectus is
correct as of any time subsequent to the dates as of which such information is
given.
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
<S> <C>
Available Information................................... 2
Incorporation of Certain Documents
by reference.......................................... 2
Prospectus Summary...................................... 4
Risk Factors............................................ 4
Use of Proceeds......................................... 12
Description of Capital Stock............................ 12
Selling Stockholders.................................... 16
Plan of Distribution.................................... 16
Legal Matters........................................... 16
Experts................................................. 16
Additional Information.................................. 17
</TABLE>
===============================================================================
===============================================================================
224,574 SHARES
COMMON STOCK
BRIGHTPOINT, INC.
-------------
PROSPECTUS
-------------
July __, 1998
===============================================================================
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*.
The following are the estimated expenses of the issuance and
distribution of the securities being registered, all of which will be paid by
the Registrant:
<TABLE>
<S> <C>
SEC registration......................................... $ 1,134.52
----------
Printing expenses........................................ 5,000.00
----------
Legal fees and expenses.................................. 10,000.00
----------
Accounting fees and expenses............................. 15,000.00
----------
Miscellaneous............................................ 3,865.48
----------
Total............................................ $35,000.00
==========
</TABLE>
- ---------------------------
* All amounts are estimated except the first item.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the Delaware General Corporation Law permits a
corporation, by so providing in its certificate of incorporation, to eliminate
or limit director's liability to the corporation and its stockholders for
monetary damages arising out of certain alleged breaches of their fiduciary
duty. Section 102(b)(7) provides that no such limitation of liability may affect
a director's liability with respect to any of the following: (i) breaches of the
director's duty of loyalty to the corporation or its stockholders; (ii) acts or
omissions not made in good faith or which involve intentional misconduct of
knowing violations of law; (iii) liability for dividends paid or stock
repurchased or redeemed in violation of the Delaware General Corporation law; or
(iv) any transaction from which the director derived an improper personal
benefit. Section 102(b)(7) does not authorize any limitation on the ability of
the corporation or its stockholders to obtain injunction relief, specific
performance or other equitable relief against directors.
Article Nine of the Company's Certificate of Incorporation and the
Company's By-laws provide that all persons who the Company is empowered to
indemnify pursuant to the provisions of Section 145 of the General Corporation
law of the State of Delaware (or any similar provision or provisions of
applicable law at the time in effect), shall be indemnified by the Company to
the full extent permitted thereby. The foregoing right of indemnification shall
not be deemed to be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise.
II-1
<PAGE> 22
Article Ten of the Company's Certificate of Incorporation provides that
no director of the Company shall be personally liable to the Company or its
stockholders for any monetary damages except (i) for breaches of fiduciary duty
of loyalty to the Company or its stockholders (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing-violation of
law; (iii) under Section 174 of the General Corporation of Law of the State of
Delaware; or (iv) for any transaction from which the director derived an
improper personal benefit.
Insofar as indemnification for liabilities under the Act may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Commission, such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
ITEM 16. EXHIBITS
(a) Exhibits
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
4.1 Form of Common Stock Certificate (1)
4.2 Certificate of Incorporation of the Company, as amended (2)
4.3 Amended and Restated By-Laws of the Company (2)
4.4 Rights Agreement dated as of February 20, 1997, between the
Company and Continental Stock Transfer & Trust Co., as
Rights Agent (4)
5.1 Opinion of Tenzer Greenblatt LLP as to the legality of the
securities being registered (3)
23.1 Consent of Ernst & Young LLP (3)
23.2 Consent of Coopers & Lybrand LLP (5)
23.3 Consent of Tenzer Greenblatt LLP, included in opinion filed as
Exhibit 5.1
24.1 Power of Attorney, (5)
- ------------
(1) Incorporated by reference to Registration Statement (33-75148)
effective April 7, 1994.
(2) Incorporated by reference to the exhibit filed with the Company's
Registration Statement on Form S-3 (333-29533) effective August 6,
1997.
(3) Filed herewith.
(4) Incorporated by reference to the exhibit filed with the Company's
Current Report on Form 8-K, dated March 28, 1997.
(5) Previously filed.
II-2
<PAGE> 23
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act; and
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 and Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering os such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any
II-3
<PAGE> 24
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form S-3 and has duly caused this amendment to
this registration statement to be signed on its behalf by the undersigned, in
the City of Indianapolis, State of Indiana, on the 22nd day of July, 1998.
BRIGHTPOINT, INC.
By: /s/ J. Mark Howell
-----------------------------------------
J. Mark Howell, President
Pursuant to the requirements of the Securities Act of 1933, this
amendment to this Registration Statement on Form S-3 was signed by the following
persons in the capacities and on the dates stated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ * Director, Chairman of the Board July 22, 1998
- -------------------- and Chief Executive Officer
Robert J. Laikin (Principal Executive Officer)
/s/ J. Mark Howell Director and President July 22, 1998
- --------------------
J. Mark Howell
/s/ * Director and Executive Vice July 22, 1998
- --------------------
T. Scott Housefield President
/s/ * Executive Vice President and Chief July 22, 1998
- -------------------- Financial Officer (Principal
Phillip A. Bounsall Financial Officer)
/s/ * Vice President, Corporate Controller July 22, 1998
- -------------------- (Principal Accounting Officer)
John P. Delaney
/s/ * Director July 22, 1998
- --------------------
John W. Adams
/s/ * Director July 22, 1998
- --------------------
Rollin M. Dick
/s/ * Director July 22, 1998
- --------------------
Steven B. Sands
/s/ * Director July 22, 1998
- --------------------
Stephen H. Simon
/s/ * Director July 22, 1998
- --------------------
Todd H. Stuart
/s/ * Director July 22, 1998
- --------------------
Robert F. Wagner
* By:/s/ J. Mark Howell
-------------------
J. Mark Howell,
Attorney-in-Fact
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[Letterhead of Tenzer Greenblatt LLP]
July 22, 1998
Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, Indiana 46278
Gentlemen:
You have requested our opinion with respect to the offer and sale by
certain selling stockholders of Brightpoint, Inc., a Delaware corporation (the
"Company") pursuant to a Registration Statement (the "Registration Statement")
on Form S-3 (No. 333-58863) filed by the Company under the Securities Act of
1933, as amended (the "Act"), of up to 224,574 shares (the "Shares") of common
stock, par value $.01 per share, of the Company.
We have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents and corporate and public
records as we deem necessary as a basis for the opinion hereinafter expressed.
With respect to such examination, we have assumed the genuineness of all
signatures appearing on all documents presented to us as originals, and the
conformity to the originals of all documents presented to us as conformed or
reproduced copies. Where factual matters relevant to such opinion were not
independently established, we have relied upon certificates of executive
officers and responsible employees and agents of the Company.
Based upon the foregoing, it is our opinion that the Shares are duly
authorized, validly issued and fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement, and to the use of our name as your counsel in
connection with the Registration Statement and in the Prospectus forming a part
thereof. In giving this consent, we do not thereby concede that we come within
the categories of
<PAGE> 2
Brightpoint, Inc.
July 22, 1998
Page 2
persons whose consent is required by the Act or the General Rules and
Regulations promulgated thereunder.
Very truly yours,
/s/ Tenzer Greenblatt LLP
TENZER GREENBLATT LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement (Form S-3) and related Prospectus of Brightpoint, Inc.,
pertaining to the registration of Brightpoint, Inc. common stock and to the
incorporation by reference herein of our report dated January 23, 1998, with
respect to the consolidated financial statements of Brightpoint, Inc. included
in its Annual Report (Form 10-K/A, Amendment No. 2) for the year ended December
31, 1997 and the related financial statement schedule included therein, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Indianapolis, Indiana
July 7, 1998
