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As filed with the Securities and Exchange Commission on February 4, 2000
Registration No. 333-87863
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRIGHTPOINT, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 35-1778566
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
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
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(Full title of the plan)
ROBERT J. LAIKIN, CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER,
BRIGHTPOINT, INC.
6402 CORPORATE DRIVE, INDIANAPOLIS, INDIANA 46278
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(Name and address of agent for service)
(317) 297-6100
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(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Blank Rome Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
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EXPLANATORY NOTE
THIS POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT ON FORM S-8 AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 1999 (SEC NO.
333-87863) IS BEING FILED FOR THE SOLE PURPOSE OF FILING A REOFFER PROSPECTUS
INCLUDED HEREIN IN CONNECTION WITH THE OFFER AND SALE OF CONTROL SECURITIES BY
CERTAIN AFFILIATES OF THE REGISTRANT PURSUANT TO GENERAL INSTRUCTION C OF
FORM S-8.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information*
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*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.
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BRIGHTPOINT, INC.
5,613,569 SHARES OF COMMON STOCK
This prospectus relates to the resale of up to 5,613,569 shares of
common stock of Brightpoint, Inc. by some of our stockholders. These selling
stockholders are offering shares of our common stock which may be issued to them
upon the exercise of options granted under our 1994 and 1996 Stock Option Plans
and our Non-Employee Director Stock Option Plan, all as amended.
The selling stockholders may sell these shares from time to time
through ordinary brokerage transactions in the over-the-counter markets, in
negotiated transactions or otherwise, at market prices prevailing at the time of
sale, at negotiated prices and in certain other ways, as described under "Plan
of Distribution" on page 18. We will not receive any of the proceeds from the
sale of these shares.
Our common stock is traded on the Nasdaq National Market under the
symbol "CELL." On February 2, 2000, the closing sale price of our common stock
as reported by Nasdaq was $14.0625.
INVESTING IN OUR COMMON STOCK IS SPECULATIVE AND INVOLVES A HIGH DEGREE
OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 5.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is February 4, 2000.
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SPECIAL INFORMATION REGARDING FORWARD LOOKING STATEMENTS
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 certain known and unknown risks, uncertainties and other
factors which may cause our actual results, performance or achievements to be
materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Factors that could
contribute to these differences include those discussed in the "Risk Factors"
section and elsewhere in this prospectus as well as our previous filings with
the Securities and Exchange Commission. The words "believe," "expect,"
"anticipate," "intend" and "plan" and similar expressions identify
forward-looking statements. Our actual results could be materially different
from those contemplated by these statements. You should not place undue reliance
on these forward-looking statements, which speak only as of the date each
statement was made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have previously filed the following documents with the Securities
and Exchange Commission. These documents are incorporated by reference in, and
shall be deemed a part of, this prospectus:
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
(2) Quarterly Report on Form 10-Q for the quarterly period ended March
31, 1999;
(3) Current Report on Form 8-K for the event dated June 11, 1999;
(4) Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1999;
(5) Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1999; and
(6) The description of our common stock contained in our Registration
Statements on Form 8-A declared effective on April 7, 1994 and
March 28, 1997, together with any amendment or report filed with
the Securities and Exchange Commission for the purpose of updating
such description.
The financial statements and related data included in the documents
listed above which are incorporated by reference herein do not reflect the
reclassification discussed on page 4 of this prospectus. However, we believe
that the financial data, analyses and discussions provided in the above
documents are not materially affected by the reclassification.
All documents that we file pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, after the date of this
prospectus and before the termination of the offering of the securities under
this prospectus shall be deemed to be incorporated by reference in, and shall be
deemed to become a part of, this prospectus as of the date of filing with the
Securities and Exchange Commission. Any statement incorporated in this
prospectus shall be deemed to be modified or superseded to the extent that a
statement contained in a subsequently filed document which is deemed to be
incorporated by reference in this prospectus modifies or supersedes such
statement. Any statement which has been subsequently 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.
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This prospectus incorporates by reference documents that are not
presented in or delivered with this prospectus. These documents are available
without charge to any person, including any beneficial owner of our securities,
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 number (317) 297-6100.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934. We file reports, proxy statements and other information
with the SEC. These reports and other information can be read and copied at the
public reference facilities maintained by the SEC at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at its regional offices: 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade
Center, 13th Floor, New York, New York 10048. You can obtain copies of these
materials at prescribed rates from the Public Reference Room of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our
electronic filings made through the SEC's Electronic Data Gathering, Analysis
and Retrieval System are publicly available through the SEC's worldwide web site
(http://www.sec.gov).
THE COMPANY
We are a leading provider of outsourced services in the global wireless
telecommunications and data industry. Our services include contract
manufacturing, customized packaging, prepaid and e-commerce solutions, inventory
management, distribution and other outsourced services. Our customers include
leading network operators, e-tailers, retailers and wireless equipment
manufacturers. We handle products manufactured by such technology companies as
Nokia, Ericsson, Motorola, Kyocera, Siemens, Sony, Samsung, NEC, Audiovox and
Panasonic. We also provide integrated services to these manufacturers and
wireless network operators along with their associated service providers,
resellers, agents and retailers. Our distribution services include purchasing,
marketing, selling, warehousing, picking, packing, shipping and delivery of
wireless handsets and accessories. Our integrated logistics services include
support for prepaid programs, inventory management, procurement, product
fulfillment, programming, light assembly, telemarketing, private labeling,
kitting and customized packaging, product warranty, repair and refurbishment and
end-user support services. We are one of the largest distributors of wireless
handsets and accessories in the world, with operations centers and/or sales
offices in various countries including Australia, Brazil, China (including Hong
Kong), France, Germany, Ireland, Mexico, the Netherlands, New Zealand, the
Philippines, South Africa, Sweden, the United Arab Emirates, the United States
and Venezuela.
We were incorporated under the laws of the State of Indiana in August
1989 under the name Wholesale Cellular USA, Inc. and reincorporated under the
laws of the State of Delaware in March 1994. In September 1995, we changed our
name to Brightpoint, Inc.
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RECENT DEVELOPMENTS
Effective in the first quarter of 2000, and applied retroactively to
all periods, we will reclassify certain revenue and cost of revenue amounts
related to our services supporting prepaid wireless telecommunications. The
reclassification, which reduces revenue and costs of revenue by the same amount,
has no impact on gross profit, selling, general and administrative expenses,
operating income, net income or earnings per share. All amounts in this
prospectus reflect the retroactive application of the reclassification. The
table below summarizes the impact on revenue and cost of revenue by quarter for
each of the last three years.
Reduction of net revenue and cost of revenue as a result of reclassification
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(Amounts in thousands)
1st Quarter 2nd Quarter 3rd Quarter 4th Quarter Year
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1997 $ 1,432 $ 4,057 $10,675 $13,369 $29,533
1998 7,989 16,761 22,163 8,433 55,346
1999 8,787 14,957 19,224 20,076 63,044
Beginning on June 30, 1999, we implemented a broad restructuring plan
eliminating or restructuring identified non-performing business activities and
reducing costs. The restructuring plan included the disposal of operations in
the United Kingdom, Poland, Taiwan and Argentina; termination of our investments
in two joint operations in China; disposal of our 67% interest in a Hong
Kong-based accessories company; and initiating cost reduction programs in
certain areas of our business . As of the date of this prospectus, our execution
of the restructuring plan has been substantially completed. During 1999 we
recorded non-recurring restructuring and unusual charges of approximately $84.9
million resulting from actions taken in accordance with the restructuring plan.
The charges included the write-off of goodwill and investments related to the
eliminated or terminated operations, as well as losses on the disposals of fixed
and other assets and cash expenses (approximately $6 million) related to lease
and employee termination costs and legal fees. The non-recurring charges also
include the write-down of inventory and accounts receivable to their estimated
net realizable value.
We recently reported our unaudited financial results for the quarter
and year ended December 31, 1999. Because of the significance of the
restructuring plan our results of operations have been delineated between
results from recurring operations and results from non-recurring operations.
Recurring operations include all operations except those that have been
eliminated or terminated by us in accordance with the restructuring plan.
Recurring operations also exclude impacts of non-recurring charges we recorded
in 1998 and 1999, the cumulative effect of a change in accounting principle we
recorded in the first quarter of 1999 and a net investment gain we recognized in
the first quarter of 1998. For the year ended December 31, 1999, our revenues
and net income from recurring operations, were $1.6 billion and $16.8 million,
respectively, representing an increase in revenues from recurring operations of
29% and a decrease in net income from recurring operations of 53% when compared
to the year ended December 31, 1998. In the fourth quarter of 1999 we generated
net income from recurring operations of $10.3 million ($0.18 per diluted share)
on revenue of $518 million, compared to net income from recurring operations of
$11.5 million ($0.21 per diluted share) on revenue of $438 million for the
comparable 1998 period. Our growth in revenues for both the quarter and year
ended December 31, 1999 was driven primarily by increases in worldwide demand
for wireless handsets and accessories. Our operating margins (income from
operations, as a percent of revenue) from recurring operations decreased in both
the fourth quarter and on an annual basis during 1999 due to an increase in
selling, general and administrative expenses as a percent of revenue and, for
the year, due to a decrease in gross margins. Selling, general and
administrative expenses increased in 1999 as a result of increased levels of
business activity and increased costs of serving current and anticipated
integrated logistics services customers. Gross margins for the year decreased
due to increased cost of revenues, generally arising from the addition of
infrastructure to serve new logistics customers.
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RISK FACTORS
You should carefully consider the following risk factors before
purchasing any shares of our common stock being offered with this prospectus by
the selling stockholders.
IN THE PAST TWO YEARS WE HAVE INCURRED SIGNIFICANT LOSSES DURING CERTAIN
QUARTERLY PERIODS.
Although we achieved a profit of approximately $9.9 million during the
three months ended December 31, 1999, we incurred net losses for each of the
first two quarters of 1999 and a net loss of $93.1 million for the year ended
December 31, 1999. We also incurred a net loss of $7.1 million for the three
months ended December 31, 1998. The net loss for 1999 includes approximately
$84.9 million of restructuring and other unusual charges as well as the
cumulative effect of an accounting change of $14.1 million. The net loss for the
three months ended December 31, 1998 includes approximately $25.7 million of
trading and other unusual charges resulting from our decision to eliminate our
trading activities. Several business factors appear to have contributed to our
losses in these periods including an inadequate supply of products for sale
through our distribution services, our inability to replace, during 1999,
revenues which had been generated by the trading business that we exited in the
fourth quarter of 1998, the impacts of the devaluation of the Brazilian Real and
price competition from trading companies in our Asia-Pacific and Latin America
divisions. We may incur additional future losses.
WE HAVE SIGNIFICANT OUTSTANDING INDEBTEDNESS, WHICH IS SECURED BY A LARGE
PORTION OF OUR ASSETS AND WHICH COULD PREVENT US FROM BORROWING ADDITIONAL
FUNDS, IF NEEDED.
As of December 31, 1999, approximately $41.1 million was outstanding
under our $175 million senior secured revolving line of credit facility with
Bank One, Indiana, NA, as agent for a group of banks and approximately $4.9
million of other indebtedness was outstanding. All of our assets located in the
United States and between 65% and 100% of the capital stock of certain of our
subsidiaries are pledged as collateral under the credit facility. In addition,
during 1998 we issued an aggregate of $380 million face value of 20-year
zero-coupon, subordinated, convertible notes which had an accreted value of $185
million at December 31, 1999. If we violate our loan covenants, default on our
obligations or become subject to a change of control, our indebtedness could
become immediately due and payable, and the banks could foreclose on our assets.
The terms of our senior credit facility substantially prohibit us from
incurring additional indebtedness, which could limit our ability to expand our
operations. Our senior credit facility also limits or prohibits us 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 our assets.
THERE ARE SIGNIFICANT AMOUNTS OF OUR SECURITIES WHICH ARE ISSUABLE UPON EXERCISE
OF OUTSTANDING CONVERTIBLE SECURITIES AS WELL AS UNDER OTHER STOCK PLANS WHICH
COULD AFFECT THE MARKET PRICE OF OUR COMMON STOCK.
The $380 million face value of our 20-year zero-coupon, subordinated,
convertible notes are convertible at the option of the holder any time prior to
maturity. These notes are convertible at the rate of 19.109 shares of common
stock per $1,000 face value note, for an aggregate of 7,261,420 shares of common
stock. Additionally, we have reserved a significant number of shares of common
stock that may be issuable pursuant to our employee stock purchase plan, our
stock option plans and upon the exercise of currently outstanding warrants. In
addition, we may issue additional securities as discussed herein in the section
entitled "Description of Capital Stock." These securities when issued and
outstanding may reduce earnings per share in periods that they are considered
dilutive under Generally Accepted Accounting Principles and, to the extent that
they are exercised
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and shares of common stock are issued, dilute percentage ownership to existing
stockholders which could have an adverse effect on the market price of our
common stock.
WE HAVE INSTITUTED MEASURES TO PROTECT US AGAINST A TAKEOVER.
As more fully discussed in the section of this prospectus entitled
"Description of Capital Stock" certain provisions of our by-laws, stockholders
rights and option plans, certain employment agreements and the Delaware General
Corporation Law are designed to protect us in the event of a takeover attempt.
These provisions could prohibit or delay mergers or attempted takeovers or
changes in control of us and, accordingly, may discourage attempts to acquire
us.
OUR FUTURE OPERATING RESULTS WILL DEPEND ON OUR ABILITY TO CONTINUE TO INCREASE
OUR SALES SIGNIFICANTLY.
A large percentage of our total net revenues in recent periods has come
from sales of wireless handsets, a segment of our business that operates on a
high-volume, low-margin basis. Our ability to generate these sales is based upon
our having adequate supply of products. Approximately 76% of our total net
revenues from recurring operations for the year ended December 31, 1999
consisted of sales of wireless handsets, which produce relatively lower profits
for us. The gross margins that we realize on sales of wireless handsets could be
reduced due to increased competition or a growing industry emphasis on cost
containment.
In addition, our operating expenses have increased significantly. We
expect these expenses to continue to increase as we expand our activities and
increase our provision of integrated logistics services. Therefore, our future
profitability will depend on our ability to increase sales to cover our
additional expenses. We may not be able to cause our sales rates to grow
substantially. Even if our sales rates do increase, the gross margins that we
receive from them may not be sufficient to make our future operations
profitable.
A SIGNIFICANT PERCENTAGE OF OUR REVENUES ARE GENERATED OUTSIDE OF NORTH AMERICA
IN COUNTRIES WITH INADEQUATE PRODUCT SUPPLIES, VOLATILE CURRENCIES OR OTHER
RISKS.
For the years ended December 31, 1998 and 1999, our revenues from
recurring operations in markets outside of North America represented
approximately 63%, and 55% of our total net revenues. Our actual revenues and
results of operations for fiscal 1999 were below our initial anticipated
results. We believe that this was due primarily to the devaluation of the
Brazilian currency, our inability to obtain adequate supplies of products for
sale in the People's Republic of China and increased price competition from
trading companies in our Asia-Pacific and Latin America divisions.
Foreign currency fluctuations
A significant portion of our revenues outside the United States are
denominated in foreign currencies. The recent devaluation of the Brazilian
currency adversely impacted our results for the year ended December 31, 1999 and
a decrease in the value of other foreign currencies relative to the U.S. Dollar
could result in a significant decrease in our revenues reported in U.S. Dollars.
We purchase and sell products and services in a large number of foreign
currencies, many of which have experienced fluctuations in currency exchange
rates. On occasion, we enter into forward exchange swaps, futures or options
contracts as a means of hedging our currency transaction and balance sheet
translation exposures. However, our management has had limited prior experience
in engaging in these types of transactions. Even if done well, hedging may not
effectively limit our exposure to a decline in operating results due to foreign
currency translation. We cannot predict the effect that future exchange rate
fluctuations will have on our operating results.
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International operations
We maintain operations centers and sales offices in many other
territories and countries. The fact that our business operations are conducted
in a wide variety of countries exposes us to increased credit risks, customs
duties, import quotas and other trade restrictions, potentially greater
inflationary pressures, shipping delays, the risk of failure or material
interruption of wireless systems and services, possible wireless product supply
interruption and potentially significant increases in wireless product prices.
Changes may occur in social, political, regulatory and economic conditions or in
laws and policies governing foreign trade and investment in the territories and
countries where we currently have operations. U.S. laws and regulations relating
to investment and trade in foreign countries could also change to our detriment.
Any of these factors could have a material adverse effect on our business and
operations. During 1999 and pursuant to our restructuring plan, we terminated or
eliminated several of our foreign operations because they were not performing to
acceptable levels. These terminations resulted in significant losses to us. We
may in the future, decide to terminate certain existing foreign operations. This
could result in our incurring significant additional losses.
OUR BUSINESS DEPENDS ON THE CONTINUED TENDENCY OF WIRELESS EQUIPMENT
MANUFACTURERS AND NETWORK OPERATORS TO OUTSOURCE ASPECTS OF THEIR BUSINESS TO US
IN THE FUTURE.
Our business depends in large part on wireless equipment manufacturers
and network operators outsourcing some or all of their business functions. We
fulfill functions such as contract manufacturing, customized packaging, prepaid
and e-commerce solutions, inventory management, distribution and other
outsourced services for many of these manufacturers and network operators. In
the future, wireless equipment manufacturers and network operators may elect to
undertake these services internally. In the future, industry consolidation,
competition, deregulation, technological changes or other developments could
reduce the degree to which members of the wireless communications and data
industry rely on outsourced integrated logistics services such as the services
we provide. Any significant change in the market for our outsourcing services
could have a material adverse effect on our business.
WE BUY A SIGNIFICANT AMOUNT OF OUR PRODUCTS FROM A LIMITED NUMBER OF SUPPLIERS,
WHO MAY NOT PROVIDE US WITH COMPETITIVE PRODUCTS AT REASONABLE PRICES WHEN WE
NEED THEM IN THE FUTURE.
We purchase all of the wireless handsets and accessories that we sell
from third-party wireless communications equipment manufacturers, dealers and
network operators. For the years ended December 31, 1998 and 1999, we purchased
approximately 75% of our product supplies from only two sources of wireless
handsets and accessories. For the year ended December 31, 1999, Nokia and
Ericsson accounted for approximately 68% and 7% of our product purchases,
respectively. We depend on these suppliers to provide us with adequate
inventories of currently popular brand name products on a timely basis and on
favorable pricing terms. Our agreements with our suppliers are generally
non-exclusive, require us to satisfy minimum purchase requirements, can be
terminated on short notice and provide for certain territorial restrictions, as
is common in our industry.
We generally purchase products pursuant to purchase orders placed from
time to time in the ordinary course of business. In the future, our suppliers
may not be able or may choose not to offer us competitive products on favorable
terms without delays. In 1999, we were unable to obtain sufficient product
supplies from manufacturers to carry out our distribution services effectively
in some of our Asian markets. Any future failure or delay by our suppliers in
supplying us with products on favorable terms would severely diminish our
ability to obtain and deliver products to purchasers on a timely and competitive
basis. If we lose any of our principal suppliers, or if any supplier imposes
substantial price increases and alternative sources of supply are not readily
available, it would have a material adverse effect on our operating margins.
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THE WIRELESS COMMUNICATIONS AND DATA INDUSTRY IS INTENSELY COMPETITIVE AND WE
MAY NOT BE ABLE TO CONTINUE TO COMPETE SUCCESSFULLY IN THIS INDUSTRY.
We compete for sales of wireless communications and data equipment, and
expect that we will continue to compete, with numerous well-established wireless
network operators, distributors and manufacturers, including our own suppliers.
As a provider of integrated logistics services, we also compete with other
distributors and with logistics services companies. Many of our competitors
possess greater financial and other resources than we do and may market similar
products directly to our customers. The wireless communications and data
industry has generally had low barriers to entry. So, additional competitors may
choose to enter our industry in the future.
The markets for wireless handsets and accessories are characterized by
intense price competition and significant price erosion over the life of a
product. Many of our competitors 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. Our ability to
continue to compete successfully will depend largely on our ability to maintain
our current industry relationships. We may not be successful in anticipating and
responding to competitive factors affecting our industry, including new or
changing outsourcing requirements, the entry of additional well-capitalized
competitors, new products which may be introduced, changes in consumer
preferences, demographic trends, international, national, regional and local
economic conditions and competitors' discount pricing and promotion strategies.
As the cellular markets mature and as we seek to enter into new markets and
offer new products in the future, the competition that we face may change and
grow more intense.
WE MAY NOT BE ABLE TO MANAGE AND SUSTAIN FUTURE GROWTH AT OUR HISTORICAL AND
CURRENT RATES.
In recent years we have experienced rapid domestic and international
growth. We will need to manage our expanding operations effectively, maintain or
accelerate our growth as planned and integrate any new businesses which we may
acquire into our operations successfully in order to continue our desired
growth. If we are unable to do so, particularly in instances in which we have
made significant capital investments, it could have a material adverse effect on
our operations.
Our success in sustaining continued growth will also depend on our
ability to:
. secure adequate supplies of competitive products on a timely basis
and on commercially reasonable terms;
. turn our inventories and collect our accounts receivable in a
timely manner;
. develop additional, and maintain our existing, key relationships
with leading network operators and manufacturers and dealers of
wireless handsets and accessories; and
. hire and retain additional qualified management, marketing and
other personnel to successfully manage our growth, including
personnel to monitor our operations, control costs and maintain
effective management, inventory and credit controls.
In addition, our growth prospects could be adversely affected by a
decline in the wireless communications and data industry generally or in one of
its regional divisions, either of which could result in reduction or deferral of
expenditures by prospective customers.
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RAPID TECHNOLOGICAL CHANGES IN THE WIRELESS COMMUNICATIONS AND DATA INDUSTRY
COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS.
The technology relating to wireless communications and data equipment
changes rapidly, and industry standards are constantly evolving resulting in
product obsolescence or short product life cycles. We are required to anticipate
future technological changes in our industry and to continually identify, obtain
and market new products in order to satisfy evolving industry and customer
requirements. Competitors or manufacturers of wireless equipment may market
products which have perceived or actual advantages over our products or which
otherwise render our products obsolete or less marketable. We have made and
continue to make significant capital investments in accordance with evolving
industry and customer requirements. These concentrations of capital increase our
risk of loss as a result of rapid technological changes in the wireless
communications and data industry.
The use of emerging wireless communications technologies, including
Bluetooth, wireless local loop, satellite-based communications systems and other
new technologies, may reduce the demand for existing cellular and PCS products.
If other companies develop and commercialize new technologies or products in
related market segments that compete with existing cellular and PCS technology,
it could materially change the types of products that we are forced to offer or
result in significant price competition for us. Product obsolescence could
result in significantly increased inventories of our unsold products. However,
if we elect to stock our inventories in the future with any of these
technologies and products, we will run the risk that our existing customers and
consumers may not be willing, for financial or other reasons, to purchase new
equipment necessary to utilize these new technologies. In addition, the 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 and leaving us with additional unsold inventory.
OUR BUSINESS STRATEGY INCLUDES ENTERING INTO STRATEGIC RELATIONSHIPS AND
FINANCINGS, WHICH MAY PROVIDE US WITH MINIMAL RETURNS OR LOSSES ON OUR
INVESTMENTS.
As part of our expansion strategy, we have entered into several
strategic relationships and joint ventures with wireless equipment manufacturers
and network operators. We intend to continue to enter into similar strategic
relationships as opportunities arise. We may enter into distribution or
integrated logistics services agreements with these strategic partners and may
provide them with equity or debt financing.
Our ability to achieve future profitability through our strategic
relationships will be depend in part upon the economic viability, success and
motivation of the entities we select as strategic partners and the amount of
time and resources that these partners devote to our alliances. We may receive
minimal or no business from future relationships and joint ventures, and any
business we receive may not be significant or at the level we anticipated. The
future profits we receive from these strategic relationships, if any, may not
offset possible losses on our investments or the full amount of financings that
we extend upon entering into these relationships. Any loan to or investment in a
future strategic partner will be subject to many of the same risks faced by the
strategic partner in seeking to operate and grow its businesses. We may not
achieve acceptable returns on our future investments with strategic partners
within an acceptable period or at all.
As a part of our restructuring plan in 1999 we terminated two joint
operations in China resulting in a complete loss on our investments in those
operations. A similar failure in the establishment and operation of such
relationships could have a material adverse effect on our operations.
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WE MAY HAVE DIFFICULTY COLLECTING ON OUR ACCOUNTS RECEIVABLE.
Our accounts receivable, less an allowance for doubtful accounts, was
approximately $279 million, and $239 million at December 31, 1998 and December
31, 1999. At December 31, 1999, our allowance for doubtful accounts was
approximately $6.2 million, which we believe is currently adequate for the size
and nature of our receivables. However, any difficulties in collecting amounts
due us could require us to increase our allowances for doubtful accounts in the
future.
In connection with our continued expansion, we intend to offer open
account terms to additional customers, which may subject us to further credit
risks, particularly in the event that any receivables represent sales to a
limited number of customers or are concentrated in particular geographic
markets. Any delays in collecting or inability to collect our receivables could
have a material adverse effect on our business.
OUR OPERATING RESULTS FREQUENTLY VARY SIGNIFICANTLY AND RESPOND TO SEASONAL
FLUCTUATIONS IN PURCHASING PATTERNS.
Our operating results are influenced by a number of seasonal factors in
the different countries and markets in which we operate. These results may
fluctuate from period to period as a result of several factors, including:
. purchasing patterns of customers in different markets;
. the timing of introduction of new products by our suppliers and
competitors;
. variations in sales by distribution channels; and
. product availability and pricing.
Consumer electronics and retail sales tend to experience increased
volumes of sales at the end of the calendar year. This and other seasonal
factors contribute to the usual increase in our sales during the fourth quarter
of our fiscal year. Our operating results may continue to fluctuate
significantly in the future. In addition, if unanticipated events occur,
including delays in securing adequate inventories of competitive products at
times of peak sales or significant decreases in sales during these periods, it
could have a material adverse effect on our operating results.
OUR CONTINUED GROWTH DEPENDS ON RETAINING OUR CURRENT KEY EMPLOYEES AND
ATTRACTING ADDITIONAL QUALIFIED PERSONNEL.
Our success depends in large part on the abilities and continued
service of our executive officers and other key employees. Although we have
entered into employment agreements with several of our officers and employees,
we may not be able to retain their services. We also have non-competition
agreements with our executive officers and some of our existing key personnel.
However, courts are sometimes reluctant to enforce non-competition agreements.
The loss of executive officers or other key personnel could have a material
adverse effect on us.
In addition, in order to support our continued growth, we will be
required to effectively recruit, develop and retain additional qualified
management. If we are unable to attract and retain additional necessary
personnel, it could delay or hinder our plans for growth.
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<PAGE> 14
WE DO NOT CURRENTLY HAVE ANY PATENTS ON OUR SOFTWARE OR BUSINESS METHODS AND
RELY ON TRADE SECRET AND COPYRIGHT LAWS AND AGREEMENTS WITH OUR KEY EMPLOYEES TO
PROTECT OUR PROPRIETARY RIGHTS.
Our business success is substantially dependent upon our proprietary
software applications relating to our information systems. We do not currently
hold any patents relating to our software or business methods and rely on trade
secret and copyright laws to protect our proprietary knowledge. We also
regularly enter into non-disclosure agreements with our key employees and limit
access to and distribution of our trade secrets and other proprietary
information.
These measures may not prove adequate to prevent misappropriation of
our technology. Our competitors could also independently develop technologies
that are substantially equivalent or superior to our technology, thereby
eliminating one of our perceived competitive advantages. We also have offices
and conduct our operations in a wide variety of countries outside the United
States. The laws of some other countries do not protect our proprietary rights
to the same extent as do U.S. laws. In addition, although we believe that our
proprietary software has been developed independently and does not infringe upon
the rights of others, third parties might assert infringement claims against us
in the future or our software may be found to infringe upon the proprietary
rights of others.
WE MAKE SIGNIFICANT INVESTMENTS IN THE TECHNOLOGY USED IN OUR BUSINESS AND RELY
ON THIS TECHNOLOGY TO FUNCTION EFFECTIVELY WITHOUT INTERRUPTIONS.
We have made significant investments in sophisticated and specialized
information systems technology and have focused on the application of this
technology to provide customized integrated logistics services to wireless
communications equipment manufacturers and network operators. Our sales and
marketing efforts, a large part of which are telemarketing based, are highly
dependent on their computer and telephone equipment.
We anticipate that we will need to continue to develop new logistics
services and enhance our information systems in order to maintain our
competitiveness. Our property and business interruption insurance may not
adequately compensate us for all losses that we may incur if we lose our
equipment or systems either temporarily or permanently through a casualty or
operating malfunction. In addition, a significant increase in the costs of
additional technology or telephone services that is not recoverable through an
increase in the price of our services could have a material adverse effect on
our results of operations.
OUR LABOR FORCE EXPERIENCES A HIGH RATE OF PERSONNEL TURNOVER.
Our distribution and integrated logistics services are labor-intensive,
and we experience high personnel turnover. A significant number of our employees
are employed on a part-time basis, and a significant portion of our costs
consist of wages to hourly workers. Growth in our business, together with
seasonal increases in net sales, require us to recruit and train personnel at an
accelerated rate from time to time.
We may not be able to continue to hire, train and retain a significant
labor force of qualified employees when needed, or at all. An increase in hourly
wages, costs of employee benefits, employment taxes or commission rates could
have a material adverse effect on our operations. In addition, if the turnover
rate among our employees increased further, we would be required to increase our
recruiting and training efforts and costs, and our operating efficiencies and
productivity could decrease.
WE HAVE SIGNIFICANT FUTURE PAYMENT OBLIGATIONS PURSUANT TO CERTAIN LEASES AND
OTHER LONG-TERM CONTRACTS.
We lease our office and warehouse/distribution facilities as well as
certain furniture and equipment under property and personal equipment leases.
Many of these leases are for terms that exceed one year and
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<PAGE> 15
require us to pay significant monetary charges for early termination or breach
by us of the lease terms. We cannot assure you of our ability to adequately fund
these lease commitments from our future operations and our decision to modify,
change or abandon any of our existing facilities could have a material adverse
effect on our operations.
WE MAY BECOME SUBJECT TO SUITS ALLEGING MEDICAL RISKS ASSOCIATED WITH OUR
WIRELESS HANDSETS.
Lawsuits or claims have been filed or made against manufacturers of
wireless handsets over the past years alleging possible medical risks, including
brain cancer, associated with the electromagnetic fields emitted by wireless
communications handsets. There has been only limited relevant research in this
area, and this research has not been conclusive as to what effects, if any,
exposure to electromagnetic fields emitted by wireless handsets has on human
cells. Substantially all of our revenues are derived, either directly or
indirectly, from sales of wireless handsets.
We may become subject to lawsuits filed by plaintiffs alleging various
health risks from our products. If any future studies find possible health risks
associated with the use of wireless handsets or if any damages claim against us
is successful, it could have a material adverse effect on our business. Even an
unsubstantiated perception that health risks exist could adversely affect our
ability or the ability of our customers to market wireless handsets.
CURRENT LEGAL PROCEEDING COULD HARM OUR OPERATIONS.
We and certain of our executive officers, two of which are also
directors were named as defendants in four actions filed in June and July 1999,
in the United States District Court for the Southern District of Indiana
entitled Sakhrani et al. v. Brightpoint, Inc., et al., Clark et al. v.
Brightpoint, Inc., et al., Sendermair et al. v. Brightpoint, Inc., et al., and
Desrosiers, et al. v. Brightpoint, Inc., et al. These actions were subsequently
consolidated by the court and John Kilcoyne was appointed as the lead plaintiff.
The action asserts claims against us under sections 19(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 of the Exchange Act, based on
allegations that false and misleading statements were rendered and/or statements
were omitted concerning our then current and future financial condition and
business prospects. The cases involve a purported class of purchasers of our
stock during the period October 2, 1998 through March 10, 1999. We and the
individual defendants intend to vigorously defend these actions. However, the
outcome of any litigation is uncertain and an unfavorable decision in this
litigation could materially adversely affect us.
THE MARKET PRICE OF OUR COMMON STOCK MAY BE VOLATILE.
The market price of our common stock has risen substantially and has
fluctuated significantly from time to time since our initial public offering in
April 1994. The trading price of our common stock could experience significant
fluctuations in the future in response to several factors, which could include
actual or anticipated variations in our quarterly operating results; the
introduction of new services, products or technologies by us, our suppliers or
our competitors; changes in other conditions or trends in the wireless
communications and data industry; changes in governmental regulation; or changes
in securities analysts' estimates of our future performance or that of our
competitors or our industry in general. General market price declines or market
volatility in the prices of stocks for companies in the wireless communications
and data industry or in the distribution or integrated logistics services
sectors of the wireless communications and data industry could also affect the
market price of our common stock.
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USE OF PROCEEDS
We will not receive any proceeds from the sale of shares of our common
stock by the selling stockholders. We will only receive proceeds if selling
stockholders exercise options underlying shares of our common stock being
offered with this prospectus prior to the sale of those shares. If we receive
any proceeds from the exercise of options, it will be added to our working
capital. We have agreed to bear certain expenses in connection with the
registration of the shares of common stock being offered and sold by the selling
stockholders.
DESCRIPTION OF CAPITAL STOCK
GENERAL
We are authorized to issue 100,000,000 shares of common stock, $.01 par
value, and 1,000,000 shares of preferred stock, $.01 par value. As of February
2, 2000, there are 53,621,584 shares of our common stock outstanding and no
shares of our preferred stock outstanding.
COMMON STOCK
Except as required by law or by our 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 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 our company, holders of common stock will be 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 shares of common stock
into any of our 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. Our Board of Directors may issue
additional authorized shares of common stock without further action by the
stockholders.
PREFERRED STOCK
Our 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 their rights, preferences, privileges and restrictions,
including dividend rights, conversion rights, voting rights, terms of
redemption, liquidation preferences, 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 our control. We have 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.
ANTI-TAKEOVER EFFECTS OF CERTAIN PROVISIONS OF OUR BY-LAWS, STOCKHOLDERS RIGHTS
PLAN AND DELAWARE CORPORATE LAW
By-Laws. Our By-Laws contain provisions that could make it more
difficult to acquire control of us by various means, such as a tender offer,
open market purchases, a proxy contest or otherwise. For instance, our 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
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of our Board of Directors. In addition, special meetings of the stockholders may
only be called by a majority of the Board of Directors or our President. Our
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 our control and encourage persons seeking to acquire
control of us to consult first with the Board of Directors to negotiate the
terms of any proposed business combination or offer. These provisions are
designed to reduce our vulnerability to an unsolicited proposal for a takeover
that does not contemplate the acquisition of all outstanding shares or is
otherwise unfair to our stockholders or an unsolicited proposal for the
restructuring or sale of all or part of our company.
Stockholders Rights Plan. In February 1997, we adopted a Stockholders
Rights Plan and declared a dividend of one preferred share purchase right for
each outstanding share of common stock. The dividend was paid to holders of
record of common stock on the record date as of the close of business on
February 20, 1997. Each of these Rights entitles the registered holder to
purchase one one-thousandth of a share of our Series A Junior Participating
Preferred Stock, par value $.01 per share. Holders will be entitled to purchase
these Preferred Shares from us at a price of $115 per one one-thousandth of a
Preferred Share, subject to adjustment in certain circumstances. The description
and terms of the Rights are set forth in a Rights Agreement between us and
American Stock Transfer & Trust Company, as Rights Agent.
Rights are evidenced by and are transferable only in connection with
common stock certificates outstanding prior to the Distribution Date. The
Distribution Date is the earlier to occur of (i) ten days after a public
announcement that an Acquiring Person (a person or group of affiliated or
associated persons) has acquired beneficial ownership of 15% or more of our
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 our outstanding common stock. As soon as practical following the
Distribution Date, separate Right Certificates evidencing the Rights will be
mailed to holders of record of 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 we redeem or exchange the
Rights earlier, 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. In the event of any merger,
consolidation or other transaction in which shares of common stock are
exchanged, the holder of each Preferred Share will be entitled to receive 1,000
times the amount received per share of common stock.
If 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. If we are acquired in a merger or other business combination
transaction or if 50% or more of our 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
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<PAGE> 18
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.
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 our common stock, our Board of Directors 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, our Board of Directors may redeem all of the
outstanding Rights at a price of $.01 per Right, payable in cash or common
stock.
We can amend all of the provisions of the Rights Agreement 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. We are 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. We have not elected out of Section 203, and thus the
restrictions imposed by Section 203 apply to us. These provisions could have the
effect of discouraging, delaying or preventing a takeover of our company, which
could otherwise be in the best interest of our stockholders, and have an adverse
effect on the market price for our common stock.
TRANSFER AGENT
The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company, New York, New York.
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SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
selling stockholders:
<TABLE>
<CAPTION>
Beneficial
Ownership
of Shares of Common Shares available % of Shares
Selling Position with the Stock Prior to for sale in the Shares Owned After Owned After
Stockholder Company Offering (1) Offering (2) Offering (3) Offering
- ----------- ------- ------------ ------------------ ------------ --------
<S> <C> <C> <C> <C> <C>
Robert J. Laikin Chief Executive 2,566,712 2,308,434 258,278 *
Officer and
Director
J. Mark Howell President, Chief 1,685,010 1,660,010 25,000 *
Operating Officer
and Director
Phillip A. Bounsall Executive Vice 619,000 610,000 9,000 *
President and
Chief Financial
Officer
Steven E. Fivel Executive Vice 425,500 422,500 3,000
President and
General Counsel
John P. Delaney Vice President, 226,000 220,000 6,000 *
Chief Accounting
Officer
John W. Adams Director 60,375 56,375 4,000 *
Rollin M. Dick Director 367,125 112,625 254,500 *
Steven B. Sands Director 140,125 112,625 27,500 *
Stephen H. Simon Director 67,000 32,000 35,000 *
Todd H. Stuart Director 32,000 32,000 -0- *
Robert F. Wagner Director 48,400 47,000 1,400 *
</TABLE>
* Less than one percent.
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(1) For the purposes of this prospectus "Beneficial Ownership" is
defined as common shares currently owned by the selling stockholders plus the
number of common shares issuable upon exercise of options issued under our 1994
and 1996 Stock Option Plans and our Non-Employee Director Stock Option Plan
regardless of whether these options are exercisable within 60 days from the date
of this prospectus.
(2) Includes shares previously issued to the selling stockholders as a
result of the exercise of options issued under our 1994 and 1996 Stock Option
Plans and our Non-Employee Director Stock Option Plan. Assumes all common shares
previously issued and those that are issuable to the selling stockholders upon
exercise of options issued under our 1994 and 1996 Stock Option Plans and our
Non-Employee Director Stock Option Plan are sold pursuant to this offering.
selling stockholders, however, may choose to exercise only a portion or none of
their options and may not sell any or all of the common shares issued upon
exercise of the options.
(3) Represents selling stockholders' common share ownership after the
offering assuming that all of the options issued to the Selling Stockholders
under our 1994 and 1996 Stock Option Plans and our Non-Employee Director Stock
Option Plan are exercised and the underlying common shares are sold by the
Selling Stockholders.
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PLAN OF DISTRIBUTION
We are registering shares of our common stock with this prospectus on
behalf of the selling stockholders, who include any donees and pledgees of
shares received from the selling stockholders named in this prospectus. We have
agreed to bear certain expenses in connection with the registration of the
shares of our common stock offered and being sold by the selling stockholders.
The selling stockholders will bear all brokerage commissions and similar selling
expenses, if any, attributable to sales of the shares. Sales of shares may be
effected by selling stockholders from time to time in one or more types of
transactions (which may include block transactions) on the Nasdaq National
Market, in the over-the-counter market, in negotiated transactions, or a
combination of such methods of sale, at market prices prevailing at the time of
sale, or at negotiated prices. These transactions may or may not involve brokers
or dealers. The Selling Stockholders may also use the shares of common stock
covered by this Prospectus to cover short sales, calls or other hedge positions.
The selling stockholders may effect these transactions by selling
shares directly to purchasers or to or through broker-dealers, which may act as
agents or principals. Broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from the selling stockholders and/or the
purchasers of shares for whom such broker-dealers may act as agents or to whom
they sell as principal or both (this compensation to a particular broker-dealer
might be in excess of customary commissions).
The selling stockholders and any broker-dealers that act in connection
with the sale of shares might be deemed to be "underwriters" within the meaning
of Section 2(a)(11) of the Securities Act. In this case, any commissions
received by broker-dealers and any profit on the resale of the shares sold by
them while acting as principals might be deemed to be underwriting discounts or
commissions under the Securities Act. We have agreed to indemnify the selling
stockholders against certain liabilities, including liabilities arising under
the Securities Act. The selling stockholders may agree to indemnify any agent,
dealer or broker-dealer that participates in transactions involving sales of the
shares against certain liabilities, including liabilities arising under the
Securities Act.
Because the selling stockholders may be deemed to be "underwriters"
within the meaning of Section 2(a)(11) of the Securities Act, the selling
stockholders will be subject to the prospectus delivery requirements of the
Securities Act.
The selling stockholders also may resell all or a portion of their
shares in open market transactions in reliance upon Rule 144 under the
Securities Act, if they meet the criteria and conform to the requirements of
Rule 144.
INDEMNIFICATION
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 directors' 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 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
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<PAGE> 22
any limitation on the ability of the corporation or its stockholders to obtain
injunctive relief, specific performance or other equitable relief against
directors.
Article Ninth of our Certificate of Incorporation and our By-laws
provide that we shall indemnify to the fullest extent permitted all persons whom
we are empowered to indemnify pursuant to the provisions of Section 145 of the
Delaware General Corporation Law (or any similar provision or provisions of
applicable law at the time in effect). This 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.
Article Tenth of our Certificate of Incorporation provides that none of
our directors shall be personally liable to us or our stockholders for any
monetary damages for breaches of fiduciary duty as a director, provided that
such provision does not eliminate or limit the liability of a director: (i) for
breaches of fiduciary duty of loyalty to us or our 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 Delaware General
Corporation Law; or (iv) for any transaction from which the director derived an
improper personal benefit.
We have also entered into certain agreements where we have agreed,
subject to certain limitations, to indemnify our officers and directors for
judgments, fines, assessments, interest and other charges they may incur as a
party, witness or other participant in any threatened, pending or completed
actions, suits or proceeding by reason of their acting as an officer, director,
employee or agent of us or any of our subsidiaries, provided that the
indemnified party acted in good faith in a manner that person believed to be in
or not opposed to our best interests and, with respect to certain matters, had
no reasonable cause to believe that his conduct was unlawful. The agreements
also provide that upon a "change of control" of us, as defined in the
agreements, we will be required to designate and set aside certain funds for
possible future payments of the indemnified parties pursuant to the agreements.
Insofar as indemnification for liabilities under the Securities Act may
be permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, we have 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.
LEGAL MATTERS
Blank Rome Tenzer Greenblatt LLP of New York, New York has passed upon
certain legal matters with respect to the validity of the shares of common stock
being offered by this prospectus.
EXPERTS
Our consolidated financial statements included and incorporated by
reference in our Annual Report (Form 10-K) for the year ended December 31,
1998, and our financial statement schedule included in our Annual Report (Form
10-K) for the year ended December 31, 1998, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report (in the case of the
consolidated financial statements) and consent (in the case of the financial
statement schedule) thereon included and incorporated by reference (in the case
of their report) therein and incorporated by reference herein by reference.
Such consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such report and consent given on the authority of
such firm as experts in accounting and auditing.
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ADDITIONAL INFORMATION
We have filed a registration statement with the Securities and Exchange
Commission including the shares offered by this prospectus. This prospectus,
which is filed as part of the registration statement, does not contain all of
the information set forth in, or annexed as exhibits to, the registration
statement, portions of which have been omitted in accordance with the rules and
regulations of the SEC. For further information about us and this offering, you
should read the registration statement, including exhibits filed with it, which
may be read and copied at the public reference facilities maintained by the SEC
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at its regional offices: 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and 7 World Trade Center, 13th Floor, New York, New York
10048. You can obtain copies of materials at prescribed rates from the Public
Reference Room of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, and
you can obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330. Our electronic filings made through the SEC's
Electronic Data Gathering, Analysis and Retrieval System are publicly available
through the SEC's worldwide web site at http://www.sec.gov.
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================================================================================
We have not authorized any dealer, sales person or any other person to
give any information or to represent anything not contained in this prospectus.
You must not rely on any unauthorized information. This prospectus does not
offer to sell or bring any securities in any jurisdiction where it is unlawful.
TABLE OF CONTENTS
Page
Special Information Regarding
Forward Looking Statements............................2
Incorporation of Certain Documents
by Reference..........................................2
Available Information...................................3
The Company.............................................3
Risk Factors............................................5
Use of Proceeds.........................................13
Description of Capital Stock............................13
Selling Stockholders....................................16
Plan of Distribution....................................18
Indemnification.........................................18
Legal Matters...........................................19
Experts.................................................19
Additional Information..................................20
5,613,569 SHARES
COMMON STOCK
BRIGHTPOINT, INC.
-------------
PROSPECTUS
-------------
FEBRUARY 4, 2000
================================================================================
<PAGE> 25
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 quarterly
period ended March 31, 1999;
(3) The Registrant's Current Report on Form 8-K for the event dated
June 11, 1999;
(4) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1999;
(5) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1999;
(6) 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 March 28, 1997 and any amendments thereto;
and
(7) 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.
II-1
<PAGE> 26
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
II-2
<PAGE> 27
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.
The registrant has also entered into certain agreements wherein it has
agreed, subject to certain limitations, to indemnify its officers and directors
for judgments, fines, assessments, interest and other charges they may incur as
a party, witness or other participant in any threatened, pending or completed
actions, suits or proceeding by reason of their acting as an officer, director,
employee or agent of the registrant or any of its subsidiaries, provided that
the indemnified party acted in good faith in a manner such person believed to be
in or not opposed to the best interests of the registrant and, with respect to
certain matters, had no reasonable cause to believe that his conduct was
unlawful. The agreements also provide that upon a "change of control" of the
registrant, as defined in the agreements, the registrant will be required to
designate and set aside certain funds for possible future payments of the
indemnified parties pursuant to the agreements.
Insofar as indemnification for liabilities under the Act may be
permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, we have 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 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
II-3
<PAGE> 28
Item 8. Exhibits.
--------
Exhibit No. Description
- ----------- -----------
5 Opinion of Blank Rome Tenzer Greenblatt LLP (previously
filed by Tenzer Greenblatt LLP, predecessor to Blank Rome
Tenzer Greenblatt LLP)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Blank Rome Tenzer Greenblatt LLP (included in
Exhibit 5)
24.1 Powers of Attorney (included on the signature page of
this Registration Statement)*
- ---------
* Previously filed
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)
II-4
<PAGE> 29
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.
(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
II-5
<PAGE> 30
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.
II-6
<PAGE> 31
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
Post-Effective Amendment No. 1 to this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Indianapolis, State of Indiana, on this 4th day of February, 2000
BRIGHTPOINT, INC.
By: /s/ Robert J. Laikin
----------------------
Robert J. Laikin,
Chairman of the Board
and Chief Executive
Officer
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 February 4, 2000
- --------------------- Board and Chief Executive
Robert J. Laikin Officer (Principal Executive
Officer)
* Director, President and Chief February 4, 2000
- ------------------- Operating Officer
J. Mark Howell
/s/ Phillip A. Bounsall Executive Vice President, February 4, 2000
- ------------------------ Chief Financial Officer
Phillip A. Bounsall (Principal Financial Officer)
/s/ John P. Delaney Vice President, Chief February 4, 2000
- ---------------------- Accounting Officer (Principal
John P. Delaney Accounting Officer)
/s/ * Director February 4, 2000
- --------------------
John W. Adams
/s/ * Director February 4, 2000
- --------------------
Robert F. Wagner
/s/ * Director February 4, 2000
- --------------------
Stephen H. Simon
/s/ * Director February 4, 2000
- --------------------
Rollin M. Dick
/s/ * Director February 4, 2000
- --------------------
Steven B. Sands
/s/ * Director February 4, 2000
- --------------------
Todd H. Stuart
*By: /s/ Robert J. Laikin
----------------------
Robert J. Laikin
Attorney-In-Fact
</TABLE>
II-7
<PAGE> 32
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
23.1 Consent of Ernst & Young LLP
- ---------
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the
prospectus included in the Registration Statement for the sale of up to
5,613,569 shares of common stock of Brightpoint, Inc., to the incorporation by
reference therein of our report dated January 26, 1999, with respect to the
consolidated financial statements of Brightpoint, Inc. incorporated by reference
and included in its Annual Report (Form 10-K) for the year ended December 31,
1998, and to the incorporation by reference of our consent dated March 29, 1999
with respect to the financial statement schedule of Brightpoint, Inc. included
in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Indianapolis, Indiana
January 31, 2000
