<PAGE> 1
As filed with the Securities and Exchange Commission on September 27, 1999.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
BRIGHTPOINT, INC.
-----------------
(Exact name of registrant as specified in its charter)
DELAWARE 35-1778566
----------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6402 CORPORATE DRIVE, INDIANAPOLIS, INDIANA 46278
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(Address of principal executive offices) (Zip Code)
1994 STOCK OPTION PLAN, AS AMENDED; 1996 STOCK OPTION PLAN, AS AMENDED;
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN;
1999 BRIGHTPOINT, INC. EMPLOYEE STOCK PURCHASE PLAN
---------------------------------------------------
(Full title of the plan)
J. MARK HOWELL, PRESIDENT,
BRIGHTPOINT, INC.
6402 CORPORATE DRIVE, INDIANAPOLIS, INDIANA 46278
-------------------------------------------------
(Name and address of agent for service)
(317) 297-6100
--------------
(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
THIS REGISTRATION STATEMENT ALSO RELATES TO THE FOLLOWING REGISTRATION
STATEMENTS OF THE REGISTRANT PREVIOUSLY FILED ON FORM S-8: FILE NOS.
33-90986, 333-03535, 333-36823 AND 333-36829
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Amount to be Aggregate Price Aggregate Offering Registration
Title of Securities to be Registered Registered Per Share (1) Price(1) Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 4,300,000
per share shares(2)(3) $ 5.75 $ 24,725,000 $ 6,873.55
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 4,595,346
per share shares(3)(4) 10.11 46,458,948 (7)
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 2,357,336
per share shares(3)(5) 7.38 17,397,140 (7)
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 613,125
per share shares(3)(6) 6.98 4,279,613 (7)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL $ 6,873.55
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Calculated pursuant to Rule 457 under the Securities Act of 1933, as
amended, based upon as to the outstanding options to purchase shares of
common stock, the exercise price thereof and as to shares issuable upon
exercise of options reserved for future issuance, upon the average of the
high and low sales price of the common stock of Brightpoint, Inc. (the
"Registrant") reported on the Nasdaq National Market on September 21,
1999.
(2) Represents (i) 2,300,000 shares of common stock issuable upon exercise of
options eligible for grant under the Registrant's 1994 Stock Option Plan,
as amended, (the "1994 Plan") and (ii) 2,000,000 shares of common stock
issuable under the Registrant's 1999 Employee Stock Purchase Plan (the
"1999 Plan").
(3) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate number of shares of
the registrant's common stock that may be issued pursuant to the
anti-dilution provisions of the 1994 Plan, the 1999 Plan, the Registrant's
1996 Stock Option Plan, as amended, (the "1996 Plan") and the Registrant's
Non-Employee Director Stock Option Plan (the "BOD Plan").
(4) Represents (i) 9,170 shares of common stock issuable upon exercise of
options eligible for grant under the 1994 Plan and (ii) 4,586,176 shares
of common stock issuable upon exercise of options granted under the 1994
Plan, all of which shares have previously been registered and, are being
carried forward from the Registrant's prior registration statements
(Nos. 33-90986, 333-03535 and 333-36823).
2
<PAGE> 3
(5) Represents (i) 210,501 shares of common stock issuable upon exercise of
options eligible for grant under the 1996 Plan and (ii) 2,146,835 shares
of common stock issuable upon exercise of options granted under the 1996
Plan, all of which shares have previously been registered and, are being
carried forward from the Registrant's prior registration statement
(No. 333-36829).
(6) Represents (i) 416,375 shares of common stock issuable upon exercise of
options eligible for grant under the BOD Plan and (ii) 196,750 shares of
common stock issuable upon exercise of options granted under the BOD Plan,
all of which shares have previously been registered and, are being carried
forward from the Registrant's prior registration statements
(Nos. 33-90986 and 333-03535).
(7) As noted in notes (4)-(6) above, no fee is due. With respect to the
Registrant's prior registration statements on Form S-8 (Nos. 33-90986,
333-03535, 333-36823, 333-36829), the Registrant previously paid aggregate
registration fees of approximately $40,853.
3
<PAGE> 4
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended, and the Note to Part I of Form
S-8.
4
<PAGE> 5
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998;
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(3) The Registrant's Current Report on Form 8-K dated June 11, 1999;
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999;
(5) The description of the Registrant's common stock, par value $.01
per share, contained in the Registrant's Registration Statement on Form 8-A
declared effective April 7, 1994 and any amendments thereto and description of
the attendant Preferred Share Purchase Rights contained in the Registrant's
Registration Statement on Form 8-A dated March 28, 1997 and any amendments
thereto; and
(6) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the respective date of
filing of such documents. Any statement contained in a document incorporated by
reference herein is modified or superseded for all purposes to the extent that a
statement contained in this Registration Statement or in any other subsequently
filed document which is incorporated by reference modifies or replaces such
statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
5
<PAGE> 6
Item 6. Indemnification of Directors and Officers.
Sections 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 injunctive relief, specific
performance or other equitable relief against directors.
Article TENTH of the registrant's Certificate of Incorporation provides
that no director shall be personally liable to the registrant or any of its
stockholders for monetary damages for breach of fiduciary duty as a director
except to the extent such elimination or limitation is prohibited by the
Delaware General Corporation Law. In addition, Article NINTH of the registrant's
Certificate of Incorporation and Article XX of the By-Laws of the registrant
provide in substance that, to the fullest extent permitted by Delaware law, each
director and officer shall be indemnified by the registrant against reasonable
costs and expenses, including attorneys fees, and any liabilities which may be
incurred in connection with any action to which he may be made a party by reason
of having been a director or officer of the registrant. The indemnification
provided by the registrant's By-Laws is not deemed exclusive of or in any way to
limit any other rights which any person seeking indemnification may be entitled.
Item 7. Exemption from Registration Claimed.
Not applicable.
6
<PAGE> 7
Item 8. Exhibits.
Exhibit No. Description
- ----------- -----------
4.1 Rights Amendment, dated as of February 20, 1997(1)
4.2 Amendment No. 1 to the Rights Agreement(2)
5 Opinion of Tenzer Greenblatt LLP
10.1 1994 Stock Option Plan, as amended June 24, 1999
10.2 1996 Stock Option Plan, as amended June 24, 1999
10.3 Non-Employee Director Stock Option Plan(3)
10.4 1999 Brightpoint, Inc. Employee Stock Purchase Plan(4)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Tenzer Greenblatt LLP (included in Exhibit 5)
24.1 Powers of Attorney (included on Signature Page of this
Registration Statement)
- ----------------------
(1) Filed as an exhibit to the Registrant's Current Report on Form
8-K for the event dated February 20, 1997, and incorporated by
reference thereto.
(2) Filed as an exhibit to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1998, and incorporated
by reference thereto.
(3) Filed as an exhibit to the Registrant's Registration Statement
on Form S-1 (33-75148) and incorporated by reference thereto.
(4) Filed as an appendix to the Registrant's Definitive Proxy
Statement dated April 15, 1999 filed on Schedule 14A and
incorporated by reference thereto.
Item 9. Undertakings.
(a) 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 of 1933;
(ii) to reflect in the Prospectus any facts or events arising
after the effective date of the prospectus (or the most recent
post-effective amendments thereto) 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 end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and prices 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 (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be filed with a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
7
<PAGE> 8
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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 Act and will
be governed by the final adjudication of such issue.
8
<PAGE> 9
SIGNATURES AND POWER OF ATTORNEY
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 for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Indianapolis, State of Indiana, on September 27,
1999.
BRIGHTPOINT, INC.
By: /s/ Robert J. Laikin
-----------------------------
Robert J. Laikin,
Chairman of the Board
and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Laikin and J. Mark Howell,
jointly and severally, as his true and lawful attorney-in-fact and agent, each
with full power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each said attorney-in-fact
or agent or substitute lawfully does or causes to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
Signature Title Date
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
/s/Robert J. Laikin Director, Chairman of the Board and Chief September 27, 1999
- ---------------------- Executive Officer (Principal Executive
Robert J. Laikin Officer)
- -----------------------------------------------------------------------------------------------------
/s/J. Mark Howell Director, President and Chief Operating September 27, 1999
- ---------------------- Officer
J. Mark Howell
- -----------------------------------------------------------------------------------------------------
/s/Phillip A. Bounsall Executive Vice President, Chief Financial September 27, 1999
- ---------------------- Officer (Principal Financial Officer)
Phillip A. Bounsall
- -----------------------------------------------------------------------------------------------------
/s/John P. Delaney Vice President, Chief Accounting Officer September 27, 1999
- ---------------------- (Principal Accounting Officer)
John P. Delaney
- -----------------------------------------------------------------------------------------------------
Director September , 1999
- ----------------------
John W. Adams
- -----------------------------------------------------------------------------------------------------
/s/Robert F. Wagner Director September 27, 1999
- ----------------------
Robert F. Wagner
- -----------------------------------------------------------------------------------------------------
/s/Stephen H. Simon Director September 27, 1999
- ----------------------
Stephen H. Simon
- -----------------------------------------------------------------------------------------------------
/s/Rollin M. Dick Director September 27, 1999
- ----------------------
Rollin M. Dick
- -----------------------------------------------------------------------------------------------------
Director September , 1999
- ----------------------
Steven B. Sands
- -----------------------------------------------------------------------------------------------------
/s/Todd H. Stuart Director September 27, 1999
- ----------------------
Todd H. Stuart
- -----------------------------------------------------------------------------------------------------
</TABLE>
9
<PAGE> 10
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
4.1 Rights Amendment, dated as of February 20, 1997(1)
4.2 Amendment No. 1 to the Rights Agreement(2)
5 Opinion of Tenzer Greenblatt LLP
10.1 1994 Stock Option Plan, as amended June 24, 1999
10.2 1996 Stock Option Plan, as amended June 24, 1999
10.3 Non-Employee Director Stock Option Plan(3)
10.4 1999 Brightpoint, Inc. Employee Stock Purchase Plan(4)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Tenzer Greenblatt LLP (included in Exhibit 5)
24.1 Powers of Attorney (included on Signature Page of this
Registration Statement)
- ----------------------
(1) Filed as an exhibit to the Registrant's Current Report on Form
8-K for the event dated February 20, 1997, and incorporated by
reference thereto.
(2) Filed as an exhibit to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1998, and incorporated
by reference thereto.
(3) Filed as an exhibit to the Registrant's Registration Statement
on Form S-1 (33-75148) and incorporated by reference thereto.
(4) Filed as an appendix to the Registrant's Definitive Proxy
Statement dated April 15, 1999 filed on Schedule 14A and
incorporated by reference thereto.
10
<PAGE> 1
EXHIBIT 5
11
<PAGE> 2
[Tenzer Greenblatt LLP letterhead]
September 22, 1999
Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, Indiana 46278
Gentlemen:
You have requested our opinion with respect to the offer and sale by
you, Brightpoint, Inc., a Delaware corporation (the "Company"), pursuant to a
Registration Statement (the "Registration Statement") on Form S-8 under the
Securities Act of 1933, as amended (the "Act"), of (i) up to 2,300,000 shares
(the "New 1994 Option Shares") of common stock, par value $.01 per share (the
"Common Stock"), of the Company, issuable upon exercise of stock options
eligible for future grant pursuant to an amendment to the Company's 1994 Stock
Option Plan (the "1994 Plan") which was approved by the Company's stockholders
on May 18, 1999; (ii) up to 2,000,000 shares of Common Stock (the "ESPP Shares")
issuable under the Company's 1999 Employee Stock Purchase Plan ("1999 Plan");
(iii) up to 4,595,346 shares of Common Stock (the "Old 1994 Option Shares") of
which (a) 9,170 shares are issuable upon exercise of options eligible for grant
under the 1994 Plan and (b) 4,586,176 shares are issuable upon exercise of
options granted under the 1994 Plan; (iv) up to 2,357,336 shares of Common Stock
(the "1996 Option Shares") of which (a) 210,501 shares are issuable upon
exercise of options eligible for future grant under the Company's 1996 Stock
Option Plan (the "1996 Plan") and (b) 2,146,835 shares are issuable upon
exercise of options granted under the 1996 Plan; and (v) up to 613,125 shares of
Common Stock (the "BOD Shares") of which (a) 416,375 shares are issuable upon
exercise of options eligible for future grant under the Company's Non-Employee
Director Stock Option Plan (the "BOD Plan"), and (b) 196,750 are issuable upon
exercise of options granted under the BOD Plan.
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.
12
<PAGE> 3
Based upon the foregoing, it is our opinion that the New 1994 Option
Shares, ESPP Shares, Old 1994 Option Shares, 1996 Option Shares and BOD Shares
have been duly and validly authorized and when sold, paid for and issued as
contemplated by the 1994 Plan, the 1999 Plan, the 1996 Plan and the BOD Plan, as
the case may be, will be duly and validly issued and fully paid and
nonassessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not thereby concede that
we come within the categories of 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
13
<PAGE> 1
EXHIBIT 10.1
1994 STOCK OPTION PLAN
OF
BRIGHTPOINT, INC.
(as amended June 24, 1999)
1. PURPOSE
Brightpoint, Inc. (the "Company") desires to attract and
retain the best available talent and encourage the highest level of performance
in order to continue to serve the best interests of the Company, and its
stockholders. By affording key personnel the opportunity to acquire proprietary
interests in the Company and by providing them incentives to put forth maximum
efforts for the success of the business, the 1994 Stock Option Plan of
Brightpoint, Inc. (the "1994 Plan") is expected to contribute to the attainment
of those objectives.
The word "Subsidiary" or "Subsidiaries" as used herein, shall
mean any corporation, fifty percent or more of the voting stock of which is
owned by the Company.
2. SCOPE AND DURATION
Options under the 1994 Plan may be granted in the form of
incentive stock options ("Incentive Options") as provided in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), or in the form of
nonqualified stock options ("Non-Qualified Options"). (Unless otherwise
indicated, references in the 1994 Plan to "options" include Incentive Options
and Non-Qualified Options.) The maximum aggregate number of shares as to which
options may be granted from time to time under the 1994 Plan is 10,500,000
shares of the Common Stock of the Company ("Common Stock"), which shares may be,
in whole or in part, authorized but unissued shares or shares reacquired by the
Company. The maximum number of shares with respect to which options may be
granted to any employee during the term of the Plan is 50% of the aggregate
number of shares reserved for issuance under the Plan. If an option shall
expire, terminate or be surrendered for cancellation for any reason without
having been exercised in full, the shares represented by the option or portion
thereof not so exercised shall (unless the 1994 Plan shall have been terminated)
become available for subsequent option grants under the 1994 Plan. As provided
in paragraph 13, the 1994 Plan shall become effective on April 7, 1994, and
unless terminated sooner pursuant to paragraph 14, the 1994 Plan shall terminate
on April 7, 2004, and no option shall be granted hereunder after that date.
3. ADMINISTRATION
The 1994 Plan shall be administered by the Board of Directors
of the Company, or, at their discretion, by a committee which is appointed by
the Board of Directors to perform such function (the "Committee"). The Committee
shall consist of not less than two members of the Board of Directors, each of
whom shall serve at the pleasure of the Board of Directors and shall be any
person permitted under the provisions of Rule l6b-3 pursuant to the Securities
Exchange Act of 1934 (the "Act"). Vacancies occurring in the membership of the
Committee shall be filled by appointment by the Board of Directors.
<PAGE> 2
The Board of Directors or the Committee, as the case may be,
shall have plenary authority in its discretion, subject to and not inconsistent
with the express provisions of the 1994 Plan, to grant options, to determine the
purchase price of the Common Stock covered by each option, the term of each
option, the persons to whom, and the time or times at which, options shall be
granted and the number of shares to be covered by each option; to designate
options as Incentive Options or Non-Qualified Options; to interpret the 1994
Plan; to prescribe, amend and rescind rules and regulations relating to the 1994
Plan; to determine the terms and provisions of the option agreements (which need
not be identical) entered into in connection with options under the 1994 Plan;
and to make all other determinations deemed necessary or advisable for the
administration of the 1994 Plan. The Board of Directors or the Committee, as the
case may be, may delegate to one or more of its members or to one or more agents
such administrative duties as it may deem advisable, and the Board of Directors
or the Committee, as the case may be, or any person to whom it has delegated
duties as aforesaid may employ one or more persons to render advice with respect
to any responsibility the Board of Directors or the Committee, as the case may
be, or such person may have under the 1994 Plan.
4. ELIGIBILITY; FACTORS TO BE CONSIDERED IN GRANTING OPTIONS
Incentive Options shall be limited to persons who are
employees of the Company or its present and future Subsidiaries and at the date
of grant of any option are in the employ of the Company or its present and
future Subsidiaries. In determining the employees to whom Incentive Options
shall be granted and the number of shares to be covered by each Incentive
Option, the Board of Directors or the Committee, as the case may be, shall take
into account the nature of employees' duties, their present and potential
contributions to the success of the Company and such other factors as it shall
deem relevant in connection with accomplishing the purposes of the 1994 Plan. An
employee who has been granted an option or options under the 1994 Plan may be
granted an additional option or options, subject, in the case of Incentive
Options, to such limitations as may be imposed by the Code on such options.
Except as provided below, a Non-Qualified Option may be granted to any person,
including, but not limited to, employees, independent agents, consultants and
attorneys, who the Board of Directors or the Committee, as the case may be,
believes has contributed, or will contribute, to the success of the Company.
5. OPTION PRICE
The purchase price of the Common Stock covered by each option
shall be determined by the Board of Directors or the Committee, as the case may
be, shall not be less than 100% of the Fair Market Value (as defined in
paragraph 15 below) of a share of the Common Stock on the date on which the
option is granted. Such price shall be subject to adjustment as provided in
paragraph 12 below. The Board of Directors or the Committee, as the case may be,
shall determine the date on which an option is granted; in the absence of such a
determination, the date on which the Board of Directors or the Committee, as the
case may be, adopts a resolution granting an option shall be considered the date
on which such option is granted.
-2-
<PAGE> 3
6. TERM OF OPTIONS
The term of each option shall be not more then ten years from
the date of grant, as the Board of Directors or the Committee, as the case may
be, shall determine, subject to earlier termination as provided in paragraphs 10
and 11 below.
7. EXERCISE OF OPTIONS
Subject to the provisions of the 1994 Plan and unless
otherwise provided in the option agreement, options granted under the 1994 Plan
shall become exercisable as determined by the Board of Directors or Committee.
In its discretion, the Board of Directors or the Committee, as the case may be,
may, in any case or cases, prescribe that options granted under the 1994 Plan
become exercisable in installments or provide that an option may be exercisable
in full immediately upon the date of its grant. The Board of Directors or the
Committee, as the case may be, may, in its sole discretion, also provide that an
option granted pursuant to the 1994 Plan shall immediately become exercisable in
full upon the happening of any of the following events; (i) the first purchase
of shares of Common Stock pursuant to a tender offer or exchange offer (other
than an offer by the Company) for all, or any part of, the Common Stock, (ii)
the approval by the stockholders of the Company of an agreement for a merger in
which the Company will not survive as an independent, publicly owned
corporation, a consolidation, or a sale, exchange or other disposition of all or
substantially all of the Company's assets, (iii) with respect to an employee, on
his 65th birthday, or (iv) with respect to an employee, on the employee's
involuntary termination from employment, except as provided in Section 10
herein. In the event of a question or controversy as to whether or not any of
the events hereinabove described has taken place, a determination by the Board
of Directors or the Committee, as the case may be, that such event has or has
not occurred shall be conclusive and binding upon the Company and participants
in the 1994 Plan.
Any option at any time granted under the 1994 Plan may contain
a provision to the effect that the optionee (or any persons entitled to act
under Paragraph 11 hereof) may, at any time at which Fair Market Value is in
excess of the exercise price and prior to exercising the option, in whole or in
part, request that the Company purchase all or any portion of the option as
shall then be exercisable at a price equal to the difference between (i) an
amount equal to the option price multiplied by the number of shares subject to
that portion of the option in respect of which such request shall be made and
(ii) an amount equal to such number of shares multiplied by the fair market
value of the Company's Common Stock (within the meaning of Section 422 of the
Code and the treasury regulations promulgated thereunder) on the date of
purchase. The Company shall have no obligation to make any purchase pursuant to
such request, but if it elects to do so, such portion of the option as to which
the request is made shall be surrendered to the Company. The purchase price for
the portion of the option to be so surrendered shall be paid by the Company, at
the election of the Board of Directors or the Committee, as the case may be,
either in cash or in shares of Common Stock (valued as of the date and in the
manner provided in clause (ii) above), or in any combination of cash and Common
Stock, which may consist, in whole or in part, of shares of authorized but
unissued Common Stock or shares of Common Stock held in the Company's treasury.
No fractional share of Common Stock shall be issued or transferred and any
fractional share shall be disregarded. Shares covered by that portion of any
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<PAGE> 4
option purchased by the Company pursuant hereto and surrendered to the Company
shall not be available for the granting of further options under the Plan. All
determinations to be made by the Company hereunder shall be made by the Board of
Directors or the Committee, as the case may be.
An option may be exercised, at any time or from time to time
(subject, in the case of Incentive Options, to such restrictions as may be
imposed by the Code), as to any or all full shares as to which the option has
become exercisable until the expiration of the period set forth in Paragraph 6
hereof, by the delivery to the Company, at its principal place of business, of
(i) written notice of exercise in the form specified by the Board of Directors
or the Committee, as the case may be, specifying the number of shares of Common
Stock with respect to which the option is being exercised and signed by the
person exercising the option as provided herein, (ii) payment of the purchase
price; and (iii) in the case of Non-Qualified Options, payment in cash of all
withholding tax obligations imposed on the Company by reason of the exercise of
the option. Upon acceptance of such notice, receipt of payment in full, and
receipt of payment of all withholding tax obligations, the Company shall cause
to be issued a certificate representing the shares of Common Stock purchased. In
the event the person exercising the option delivers the items specified in (i)
and (ii) of this Subsection (c), but not the item specified in (iii) hereof, if
applicable, the option shall still be considered exercised upon acceptance by
the Company for the full number of shares of Common Stock specified in the
notice of exercise but the actual number of shares issued shall be reduced by
the smallest number of whole shares of Common Stock which, when multiplied by
the Fair Market Value of the Common Stock as of the date the option is
exercised, is sufficient to satisfy the required amount of withholding tax.
The purchase price of the shares as to which an option is
exercised shall be paid in full at the time of exercise. Payment shall be made
in cash, which may be paid by check or other instrument acceptable to the
Company; in addition, subject to compliance with applicable laws and regulations
and such conditions as the Board of Directors or the Committee, as the case may
be, may impose, the Board of Directors or the Committee, as the case may be, in
its sole discretion, may on a case-by-case basis elect to accept payment in
shares of Common Stock of the Company which are already owned by the option
holder, valued at the Fair Market Value thereof (as defined in paragraph 15
below) on the date of exercise; provided, however, that with respect to
Incentive Options, no such discretion may be exercised unless the option
agreement permits the payment of the purchase price in that manner.
Except as provided in paragraphs 10 and 11 below, no option
granted to an employee may be exercised at any time by such employee unless such
employee is then an employee of the Company or a Subsidiary.
8. INCENTIVE OPTIONS
With respect to Incentive Options granted, the aggregate Fair
Market Value (determined in accordance with the provisions of paragraph 15 at
the time the Incentive Option is granted) of the Common Stock or any other stock
of the Company or its current or future Subsidiaries with respect to which
incentive stock options, as defined in Section 422 of the Code, are exercisable
for the first time by any employee during any calendar year (under all incentive
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<PAGE> 5
stock option plans of the Company and its parent and subsidiary corporation's,
as those terms are defined in Section 424 of the Code) shall not exceed
$100,000.
No Incentive Option may be awarded to any employee who
immediately prior to the date of the granting of such Incentive Option owns more
than 10% of the combined voting power of all classes of stock of the Company or
any of its Subsidiaries unless the exercise price under the Incentive Option is
at least 110% of the Fair Market Value and the option expires within 5 years
from the date of grant.
In the event of amendments to the Code or applicable
regulations relating to Incentive Options subsequent to the date hereof, the
Company may amend the provisions of the 1994 Plan, and the Company and the
employees holding options may agree to amend outstanding option agreements, to
conform to such amendments.
9. NON-TRANSFERABILITY OF OPTIONS
Except as provided by the Board of Directors or Committee, as
the case may be, options granted under the 1994 Plan shall not be transferable
otherwise than by will or the laws of descent and distribution, and options may
be exercised during the lifetime of the optionee only by the optionee. No
transfer of an option by the optionee by will or by the laws of descent and
distribution shall be effective to bind the Company unless the Company shall
have been furnished with written notice thereof and a copy of the will and such
other evidence as the Company may deem necessary to establish the validity of
the transfer and the acceptance by the transferor or transferees of the terms
and conditions of such option.
10. TERMINATION OF EMPLOYMENT
In the event that the employment of an employee to whom an
option has been granted under the 1994 Plan shall be terminated (except as set
forth in paragraph 11 below), such option may be, subject to the provisions of
the 1994 Plan, exercised (to the extent that the employee was entitled to do so
at the termination of his employment) at any time within three (3) months after
such termination or such longer time as provided in the employee's option
agreement or the employment agreement between the Company and the employee, but
not later than the date on which the option terminates; provided, however, that,
except as otherwise provided in the employee's option agreement or the
employment agreement between the Company and the employee, any option which is
held by an employee whose employment is terminated for cause or voluntarily
without the consent of the Company shall, to the extent not theretofore
exercised, automatically terminate as of the date of termination of employment.
As used herein, "cause" shall mean conduct amounting to fraud, dishonesty,
negligence, or engaging in competition or solicitations in competition with the
Company and breaches of any applicable employment agreement between the Company
and the optionee, provided, however, that if "cause" is defined in an employment
agreement between the Company and the optionee, there shall be "cause"
hereunder, if and only if "cause" shall have occurred under such employment
agreement between the Company and the optionee. Options granted to employees
under the 1994 Plan shall not be affected by any change of duties or position so
long as the holder continues to be a regular employee of the Company or any of
its current or future Subsidiaries.
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<PAGE> 6
Any option agreement or any rules and regulations relating to the 1994 Plan may
contain such provisions as the Board of Directors or the Committee, as the case
may be, shall approve with reference to the determination of the date employment
terminates and the effect of leaves of absence. Nothing in the 1994 Plan or in
any option granted pursuant to the 1994 Plan shall confer upon any employee any
right to continue in the employ of the Company or any of its Subsidiaries or
parent or affiliated companies or interfere in any way with the right of the
Company or any such Subsidiary or parent or affiliated companies to terminate
such employment at any time.
11. DEATH OR DISABILITY OF EMPLOYEE
If an employee to whom an option has been granted under the
1994 Plan shall die while employed by the Company or a Subsidiary or within
three (3) months after the termination of such employment (other than
termination for cause or voluntary termination without the consent of the
Company), such option may be exercised, to the extent exercisable by the
employee on the date of death, by a legatee or legatees of the employee under
the employee's last will, or by the employee's personal representative or
distributees, at any time within one year after the date of the employee's
death, but not later than the date on which the option terminates. In the event
that the employment of an employee to whom an option has been granted under the
1994 Plan shall be terminated as the result of a disability, such option may be
exercised, to the extent exercisable by the employee on the date of such
termination, at any time within one year after the date of such termination, but
not later than the date on which the option terminates.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC.
The number and class of shares issuable under the 1994 Plan
and any outstanding options shall be adjusted to prevent dilution or enlargement
of rights, including adjustments in the event of changes in the outstanding
Common Stock by reason of stock dividends, split-ups, recapitalizations,
mergers, consolidations, combinations or exchanges of shares, separations,
reorganizations, liquidations and the like. In the event of any offer to holders
of Common Stock generally relating to the acquisition of their shares, the Board
of Directors or the Committee, as the case may be, may make such adjustment as
it deems equitable in respect of outstanding options and rights, including in
its discretion revision of outstanding options and rights so that they may be
exercisable for the consideration payable in the acquisition transaction. Any
such determination by the Board of Directors or the Committee, as the case may
be, shall be conclusive. Any fractional shares resulting from such adjustments
shall be eliminated.
13. EFFECTIVE DATE
The 1994 Plan shall become effective on April 7, 1994;
provided, however, that any amendment thereto shall become effective in
accordance with applicable law.
14. TERMINATION AND AMENDMENT
The Board of Directors of the Company may suspend, terminate,
modify or amend the 1994 Plan in accordance with applicable law. No suspension,
termination,
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<PAGE> 7
modification or amendment of the 1994 Plan may, without the consent of the
employee to whom an option shall theretofore have been granted, effect the
rights of such employee under such option.
15. MISCELLANEOUS
As said term is used in the 1994 Plan, the "Fair Market Value"
of a share of Common Stock on any day means: (a) if the principal market for the
Common Stock is a national securities exchange or the National Association of
Securities Dealers Automated Quotations System ("NASDAQ), the closing sales
price of the Common Stock on such day as reported by such exchange or market
system, or on a consolidated tape reflecting transactions on such exchange or
market system, or (b) if the principal market for the Common Stock is not a
national securities exchange and the Common Stock is not quoted on NASDAQ, the
mean between the highest bid and lowest asked prices for the Common Stock on
such day as reported by the National Quotation Bureau, Inc.; provided that if
clauses (a) and (b) of this paragraph are both inapplicable, or if no trades
have been made or no quotes are available for such day, the Fair Market Value of
the Common Stock shall be determined by the Board of Directors or the Committee,
as the case may be, shall be conclusive as to the Fair Market Value of the
Common Stock.
The Board of Directors or the Committee, as the case may be,
may require, as a condition to the exercise of any options granted under the
1994 Plan, that to the extent required at the time of exercise, (i) the shares
of Common Stock reserved for purposes of the 1994 Plan shall be duly listed,
upon official notice of issuance, upon stock exchange(s) on which the Common
Stock is listed, (ii) a Registration Statement under the Securities Act of 1933,
as amended, with respect to such shares shall be effective, and/or (iii) the
person exercising such option deliver to the Company such documents, agreements
and investment and other representations as the Board of Directors or the
Committee, as the case may be, shall determine to be in the best interests of
the Company.
During the term of the 1994 Plan, the Board of Directors or
the Committee, as the case may be, in its discretion, may offer one or more
option holders the opportunity to surrender any or all unexpired options for
cancellation or replacement. If any options are so surrendered, the Board of
Directors or the Committee, as the case may be, may then grant new Non-Qualified
or Incentive Options to such holders for the same or different numbers of shares
at higher or lower exercise prices than the surrendered options. Such new
options may have a different term and shall be subject to the provisions of the
1994 Plan the same as any other option.
Anything herein to the contrary notwithstanding, the Board of
Directors or the Committee, as the case may be, may, in their sole discretion,
impose more restrictive conditions on the exercise of an option granted pursuant
to the 1994 Plan; however, any and all such conditions shall be specified in the
option agreement limiting and defining such option.
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<PAGE> 8
16. COMPLIANCE WITH SEC REGULATIONS.
It is the Company's intent that the 1994 Plan comply in all
respects with Rule 16b-3 of the Act and any regulations promulgated thereunder.
If any provision of the 1994 Plan is later found not to be in compliance with
said Rule, the provisions shall be deemed null and void. All grants and
exercises of Incentive Options under the 1994 Plan shall be executed in
accordance with the requirements of Section 16 of the Act, as amended, and any
regulations promulgated thereunder.
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<PAGE> 1
EXHIBIT 10.2
1996 STOCK OPTION PLAN
OF
BRIGHTPOINT, INC.
(as amended June 24, 1999)
1. PURPOSE
Brightpoint, Inc. (the "Company") desires to attract and
retain the best available talent and encourage the highest level of performance
in order to continue to serve the best interests of the Company and its
stockholders. By affording employees and other persons of the Company and its
Subsidiaries the opportunity to acquire proprietary interests in the Company and
by providing them incentives to put forth maximum efforts for the success of the
business, the 1996 Stock Option Plan of Brightpoint, Inc. (the "1996 Plan") is
expected to contribute to the attainment of those objectives.
2. SCOPE AND DURATION
Options granted under the 1996 Plan ("options") shall be
nonqualified stock options, and not "incentive stock options" as provided in the
Internal Revenue Code of 1986, as amended. The maximum aggregate number of
shares of the Company's common stock, $.01 par value per share (the "Common
Stock"), as to which options may be granted from time to time under the 1996
Plan is 1,000,000 shares, which shares may be, in whole or in part, authorized
but unissued shares or shares reacquired by the Company. The maximum number of
shares with respect to which options may be granted to any employee during the
term of the Plan is 500,000. If an option shall expire, terminate or be
surrendered for cancellation for any reason without having been exercised in
full, the shares represented by the option or portion thereof not so exercised
shall (unless the 1996 Plan shall have been terminated) become available for
subsequent option grants under the 1996 Plan. As provided in paragraph 12, the
1996 Plan shall become effective on July 16, 1996, and unless terminated sooner
pursuant to paragraph 13, the 1996 Plan shall terminate on July 15, 2006, and no
option shall be granted hereunder after that date.
3. ADMINISTRATION
The 1996 Plan shall be administered by the Board of Directors
of the Company, or, at their discretion, by a committee which is appointed by
the Board of Directors to perform such function (the "Committee"). The Committee
shall consist of not less than two members of the Board of Directors, each of
whom shall serve at the pleasure of the Board of Directors and shall be a
"Non-Employee Director" as defined in Rule l6b-3 promulgated pursuant to the
Securities Exchange Act of 1934 (the "Act"). Vacancies occurring in the
membership of the Committee shall be filled by appointment by the Board of
Directors.
<PAGE> 2
The Board of Directors or the Committee, as the case may be,
shall have plenary authority in its discretion, subject to and not inconsistent
with the express provisions of the 1996 Plan, to grant options, to determine the
purchase price of the Common Stock covered by each option, the term of each
option, the persons to whom, and the time or times at which, options shall be
granted and the number of shares to be covered by each option; to interpret the
1996 Plan; to prescribe, amend and rescind rules and regulations relating to the
1996 Plan; to determine the terms and provisions of the option agreements (which
need not be identical) entered into in connection with options under the 1996
Plan; and to make all other determinations deemed necessary or advisable for the
administration of the 1996 Plan. The Board of Directors or the Committee, as the
case may be, may delegate to one or more of its members or to one or more agents
such administrative duties as it may deem advisable, and the Board of Directors
or the Committee, as the case may be, or any person to whom it has delegated
duties as aforesaid may employ one or more persons to render advice with respect
to any responsibility the Board of Directors or the Committee, as the case may
be, or such person may have under the 1996 Plan.
4. ELIGIBILITY; FACTORS TO BE CONSIDERED IN GRANTING OPTIONS
In determining the persons to whom options shall be granted
and the number of shares to be covered, the Board of Directors or the Committee,
as the case may be, shall take into account the nature of the persons' duties,
their present and potential contributions to the success of the Company and such
other factors as it shall deem relevant in connection with accomplishing the
purposes of the 1996 Plan. A person who has been granted an option or options
under the 1996 Plan may be granted an additional option or options, subject to
such limitations as may be imposed by the Board of Directors or the Committee,
as the case may be. An option may be granted to any person, including, but not
limited to, employees, independent agents, consultants and attorneys, who the
Board of Directors or the Committee, as the case may be, believes has
contributed, or will contribute, to the success of the Company.
5. OPTION PRICE
The purchase price of the Common Stock covered by each option
shall be determined by the Board of Directors or the Committee, as the case may
be. Such price shall be subject to adjustment as provided in paragraph 11 below.
The Board of Directors or the Committee, as the case may be, shall determine the
date on which an option is granted; in the absence of such a determination, the
date on which the Board of Directors or the Committee, as the case may be,
adopts a resolution granting an option shall be considered the date on which
such option is granted.
6. TERM OF OPTIONS
The term of each option shall be not more then ten (10) years
from the date of grant, as the Board of Directors or the Committee, as the case
may be, shall determine, subject to earlier termination as provided in
paragraphs 9 and 10 below.
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<PAGE> 3
7. EXERCISE OF OPTIONS
Subject to the provisions of the 1996 Plan and unless
otherwise provided in the option agreement, options granted under the 1996 Plan
shall become exercisable as determined by the Board of Directors or Committee,
as the case may be. In its discretion, the Board of Directors or the Committee,
as the case may be, may, in any case or cases, prescribe that options granted
under the 1996 Plan become exercisable in installments or provide that an option
may be exercisable in full immediately upon the date of its grant. The Board of
Directors or the Committee, as the case may be, may, in its sole discretion,
also provide that an option granted pursuant to the 1996 Plan shall immediately
become exercisable in full upon the happening of any, including, but not limited
to, any of the following events: (i) the first purchase of shares of Common
Stock pursuant to a tender offer or exchange offer (other than an offer by the
Company) for all, or any part of, the Common Stock, (ii) the approval by the
shareholder(s) of the Company of an agreement for a merger in which the Company
will not survive as an independent, publicly owned corporation, a consolidation,
or a sale, exchange or other disposition of all or substantially all of the
Company's assets, (iii) with respect to an employee, on his 65th birthday, or
(iv) with respect to an employee, on the employee's involuntary termination from
employment, except as provided in Paragraph 9 herein. In the event of a question
or controversy as to whether or not any event has taken place, a determination
by the Board of Directors or the Committee, as the case may be, that such event
has or has not occurred shall be conclusive and binding upon the Company and
participants in the 1996 Plan.
Any option at any time granted under the 1996 Plan may contain
a provision to the effect that the optionee (or any persons entitled to act
under Paragraph 10 hereof) may, at any time at which Fair Market Value is in
excess of the exercise price and prior to exercising the option, in whole or in
part, request that the Company purchase all or any portion of the option as
shall then be exercisable at a price equal to the difference between (i) an
amount equal to the option price multiplied by the number of shares subject to
that portion of the option in respect of which such request shall be made and
(ii) an amount equal to such number of shares multiplied by the Fair Market
Value of the Company's Common Stock (as defined in Paragraph 14 below) on the
date of purchase. The Company shall have no obligation to make any purchase
pursuant to such request, but if it elects to do so, such portion of the option
as to which the request is made shall be surrendered to the Company. The
purchase price for the portion of the option to be so surrendered shall be paid
by the Company, less any applicable withholding tax obligations imposed upon the
Company by reason of the purchase, at the election of the Board of Directors or
the Committee, as the case may be, either in cash or in shares of Common Stock
(valued as of the date and in the manner provided in clause (ii) above), or in
any combination of cash and Common Stock, which may consist, in whole or in
part, of shares of authorized but unissued Common Stock or shares of Common
Stock held in the Company's treasury. No fractional share of Common Stock shall
be issued or transferred and any fractional share shall be disregarded. Shares
covered by that portion of any option purchased by the Company pursuant hereto
and surrendered to the Company shall not be available for the granting of
further options under the Plan. All determinations to be made by the Company
hereunder shall be made by the Board of Directors or the Committee, as the case
may be.
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<PAGE> 4
An option may be exercised, at any time or from time to time,
as to any or all full shares as to which the option has become exercisable until
the expiration of the period set forth in Paragraph 6 hereof, by the delivery to
the Company, at its principal place of business, of (i) written notice of
exercise in the form specified by the Board of Directors or the Committee, as
the case may be, specifying the number of shares of Common Stock with respect to
which the option is being exercised and signed by the person exercising the
option as provided herein, (ii) payment of the purchase price; and (iii) payment
in cash of all withholding tax obligations imposed on the Company by reason of
the exercise of the option. Upon acceptance of such notice, receipt of payment
in full, and receipt of payment of all withholding tax obligations, the Company
shall cause to be issued a certificate representing the shares of Common Stock
purchased. In the event the person exercising the option delivers the items
specified in (i) and (ii) of this Subsection (c), but not the item specified in
(iii) hereof, if applicable, the option shall still be considered exercised upon
acceptance by the Company for the full number of shares of Common Stock
specified in the notice of exercise but the actual number of shares issued shall
be reduced by the smallest number of whole shares of Common Stock which, when
multiplied by the Fair Market Value of the Common Stock as of the date the
option is exercised, is sufficient to satisfy the required amount of withholding
tax.
The purchase price of the shares as to which an option is
exercised shall be paid in full at the time of exercise. Payment shall be made
in cash, which may be paid by check or other instrument acceptable to the
Company; in addition, subject to compliance with applicable laws and regulations
and such conditions as the Board of Directors or the Committee, as the case may
be, may impose, the Board of Directors or the Committee, as the case may be, in
its sole discretion, may on a case-by-case basis elect to accept payment in
shares of Common Stock of the Company which are already owned by the option
holder, valued at the Fair Market Value thereof (as defined in paragraph 14
below) on the date of exercise.
The purchase price of the shares as to which an option is
exercised may also be made by delivery to the Company by the optionee of an
executed exercise form together with irrevocable instructions to a broker-dealer
to sell or margin a sufficient portion of the shares sold or margined and
deliver the sale or margin loan proceeds directly to the Company to pay for the
exercise price.
8. NON-TRANSFERABILITY OF OPTIONS
Except as provided by the Board of Directors or Committee, as
the case may be, options granted under the 1996 Plan shall not be transferable
otherwise than by will or the laws of descent and distribution, and options may
be exercised during the lifetime of the optionee only by the optionee, as
defined in such employee's employment agreement. No transfer of an option by the
optionee by will or by the laws of descent and distribution shall be effective
to bind the Company unless the Company shall have been furnished with written
notice thereof and a copy of the will and such other evidence as the Company may
deem necessary to establish the validity of the transfer and the acceptance by
the transferor or transferees of the terms and conditions of such option.
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<PAGE> 5
9. TERMINATION OF EMPLOYMENT
In the event that the employment of an employee to whom an
option has been granted under the 1996 Plan shall be terminated (except as set
forth in paragraph 10 below), such option may be, subject to the provisions of
the 1996 Plan, exercised (to the extent that the employee was entitled to do so
at the termination of his employment) at any time within three (3) months after
such termination or such longer time as provided in the employee's option
agreement or the employment agreement between the Company and the employee, but
not later than the date on which the option terminates; provided, however, that
any option which is held by an employee whose employment is terminated for cause
shall, to the extent not theretofore exercised, automatically terminate as of
the date of termination of employment. As used herein, "cause" shall mean
conduct amounting to fraud, dishonesty, negligence, or engaging in competition
or solicitations in competition with the Company and breaches of any applicable
employment policies, provided, however, that if "cause" is defined in an
employment agreement between the Company and the optionee, there shall be
"cause" hereunder, if and only if "cause" shall have occurred under such
employment agreement between the Company and the optionee. Options granted to
employees under the 1996 Plan shall not be affected by any change of duties or
position so long as the holder continues to be a regular employee of the Company
or any of its current or future Subsidiaries. Any option agreement or any rules
and regulations relating to the 1996 Plan may contain such provisions as the
Board of Directors or the Committee, as the case may be, shall approve with
reference to the determination of the date employment terminates and the effect
of leaves of absence. Nothing in the 1996 Plan or in any option granted pursuant
to the 1996 Plan shall confer upon any employee any right to continue in the
employ of the Company or any of its Subsidiaries or parent or affiliated
companies or interfere in any way with the right of the Company or any such
Subsidiary or parent or affiliated companies to terminate such employment at any
time.
10. DEATH OR DISABILITY OF EMPLOYEE
If an employee to whom an option has been granted under the
1996 Plan shall die while employed by the Company or a Subsidiary or within
three (3) months after the termination of such employment (other than
termination for cause[or voluntary termination without the consent of the
Company]), such option may be exercised, to the extent exercisable by the
employee on the date of death, by a legatee or legatees of the employee under
the employee's last will, or by the employee's personal representative or
distributees, at any time within one year after the date of the employee's
death, but not later than the date on which the option terminates. In the event
that the employment of an employee to whom an option has been granted under the
1996 Plan shall be terminated as the result of a disability, such option may be
exercised, to the extent exercisable by the employee on the date of such
termination, at any time within one year after the date of such termination or
such longer time as provided in the employee's option agreement, but not later
than the date on which the option terminates.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC.
The number and class of shares issuable under the 1996 Plan
and any outstanding options shall be adjusted to prevent dilution or enlargement
of rights, including adjustments in
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<PAGE> 6
the event of changes in the outstanding Common Stock by reason of stock
dividends, split-ups, recapitalizations, mergers, consolidations, combinations
or exchanges of shares, separations, reorganizations, liquidations and the like.
In the event of any offer to holders of Common Stock generally relating to the
acquisition of their shares, the Board of Directors or the Committee, as the
case may be, may make such adjustment as it deems equitable in respect of
outstanding options and rights, including in its discretion revision of
outstanding options and rights so that they may be exercisable for the
consideration payable in the acquisition transaction. Any such determination by
the Board of Directors or the Committee, as the case may be, shall be
conclusive. Any fractional shares resulting from such adjustments shall be
eliminated.
12. EFFECTIVE DATE
The 1996 Plan shall become effective on July 16, 1996, the
date of adoption of the 1996 Plan by the Board of Directors of the Company.
13. TERMINATION AND AMENDMENT
The Board of Directors of the Company may suspend, terminate,
modify or amend the 1996 Plan in accordance with applicable law. No suspension,
termination, modification or amendment of the 1996 Plan may, without the consent
of the employee to whom an option shall theretofore have been granted, adversely
affect the rights of such employee under such option.
14. MISCELLANEOUS
As used in the 1996 Plan:
(i) The "Fair Market Value" of a share of Common Stock on any
day means: (a) if the principal market for the Common Stock is a national
securities exchange or the National Association of Securities Dealers Automated
Quotations System ("NASDAQ), the closing sales price of the Common Stock on such
day as reported by such exchange or market system, or on a consolidated tape
reflecting transactions on such exchange or market system, or (b) if the
principal market for the Common Stock is not a national securities exchange and
the Common Stock is not quoted on NASDAQ, the mean between the highest bid and
lowest asked prices for the Common Stock on such day as reported by the National
Quotation Bureau, Inc.; provided that if clauses (a) and (b) of this paragraph
are both inapplicable, or if no trades have been made or no quotes are available
for such day, the Fair Market Value of the Common Stock shall be determined by
the Board of Directors or the Committee, as the case may be, shall be conclusive
as to the Fair Market Value of the Common Stock.
(ii) "Subsidiary" means any corporation, fifty (50%) percent
or more of the voting stock of which is owned by the Company.
(b) The Board of Directors or the Committee, as the case may be, may
require, as a condition to the exercise of any options granted under the 1996
Plan, that to the extent required
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<PAGE> 7
at the time of exercise, (i) the shares of Common Stock reserved for purposes of
the 1996 Plan shall be duly listed, upon official notice of issuance, upon stock
exchange(s) on which the Common Stock is listed, (ii) a Registration Statement
under the Securities Act of 1933, as amended, with respect to such shares shall
be effective, and/or (iii) the person exercising such option deliver to the
Company such documents, agreements and investment and other representations as
the Board of Directors or the Committee, as the case may be, shall determine to
be in the best interests of the Company.
(c) During the term of the 1996 Plan, the Board of Directors or the
Committee, as the case may be, in its discretion, may offer one or more option
holders the opportunity to surrender any or all unexpired options for
cancellation or replacement. If any options are so surrendered, the Board of
Directors or the Committee, as the case may be, may then grant new options to
such holders for the same or different numbers of shares at higher or lower
exercise prices than the surrendered options. Such new options may have a
different term and shall be subject to the provisions of the 1996 Plan the same
as any other option.
(d) Anything herein to the contrary notwithstanding, the Board of
Directors or the Committee, as the case may be, may, in their sole discretion,
impose more restrictive conditions on the exercise of an option granted pursuant
to the 1996 Plan; however, any and all such conditions shall be specified in the
option agreement limiting and defining such option.
15. COMPLIANCE WITH SEC REGULATIONS.
It is the Company's intent that the 1996 Plan comply in all
respects with Rule 16b-3 of the Act and any regulations promulgated thereunder.
If any provision of the 1996 Plan is later found not to be in compliance with
said Rule, the provisions shall be deemed null and void. All grants and
exercises of options under the 1996 Plan shall be executed in accordance with
the requirements of Section 16 of the Act, as amended, and any regulations
promulgated thereunder.
-7-
<PAGE> 1
EXHIBIT 23.1
14
<PAGE> 2
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in this Registration Statement
(Form S-8) for the registration of (i) 6,895,346 shares of Brightpoint, Inc.
common stock issuable upon exercise of stock options granted or eligible for
grant under the 1994 Stock Option Plan of Brightpoint, Inc., as amended, (ii)
2,000,000 shares of Brightpoint, Inc. common stock issuable under the
Brightpoint, Inc. 1999 Employee Stock Purchase Plan, (iii) 2,357,336 shares of
Brightpoint, Inc. common stock issuable upon exercise of stock options granted
or eligible for grant under the 1996 Stock Option Plan of Brightpoint, Inc., as
amended and (iv) 613,125 shares of Brightpoint, Inc. common stock issuable upon
exercise of stock options granted or eligible for grant under Brightpoint,
Inc.'s Non-Employee Director Stock Option Plan, of our report dated January 26,
1999, with respect to the consolidated financial statements of Brightpoint, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1998 and the related schedule included therein, filed with the
Securities and Exchange Commission.
/s/Ernst & Young, LLP
Indianapolis, Indiana
September 21, 1999
15
