Ex-10.7
BRIGHTPOINT, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT (the "Agreement") is made effective as of the 23rd day of
February, 2006 (the "Grant Date"), between Brightpoint, Inc., an Indiana
corporation (the "Company"), and Xxxx Xxxxxxxxx Du Plessis Xxxxxx (the
"Grantee").
RECITALS:
WHEREAS, upon the recommendation of the Compensation and Human Resources
Committee (the "Committee") of the Board of Directors of the Company (the
"Board"), the Board has determined that it would be in the best interests of the
Company and its stockholders to grant to the Grantee the number of shares of
unregistered common stock of the Company provided for herein (the "Award") in
order to provide an inducement material to the Grantee entering into employment
with the Company. The Award is being made outside of the Company's 2004
Long-Term Incentive Plan in accordance with Nasdaq Marketplace Rule
4350(i)(1)(A)(iv).
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Grant of the Award. Subject to the terms and conditions set forth in
this Agreement, the Company hereby grants to the Grantee the Award consisting of
100,000 shares (each, a "Share") of unregistered common stock of the Company,
$0.01 par value per share ("Common Stock").
2. Vesting.
(a) The Award shall vest and become unrestricted as to l/8th of the
Shares on each of the first eight anniversaries of the Grant Date, unless the
Shares vest earlier pursuant to Section 2(b) or 2(c) below, or are forfeited in
accordance with Section 2(d) below. For purposes of this Agreement, the term
"Vesting Date" means each of the first, second, third, fourth, fifth, sixth,
seventh and eighth anniversaries of the Grant Date.
(b) Upon a Change of Control (as defined in the Grantee's Employment
Agreement with the Company dated as of the date hereof (the "Employment
Agreement")) any then-unvested Shares shall immediately vest and become
unrestricted.
(c) If the Grantee's employment with the Company is terminated for any
reason other than for Heightened Cause (as defined in the Employment Agreement),
including as a result of the Grantee's disability or death, the Shares shall
continue to vest in accordance with the schedule set forth in Section 2(a)
hereof.
(d) If the Grantee's employment with the Company is terminated by the
Company for Heightened Cause (as defined in the Employment Agreement), the
portion of the Award that is not vested as of the date of termination shall be
forfeited by the Grantee and such
portion shall be cancelled by the Company. The Grantee irrevocably grants to the
Company the power of attorney to transfer any unvested Shares forfeited to the
Company and agrees to execute any document required by the Company in connection
with such forfeiture and transfer.
3. Rights as a Stockholder. Except as otherwise expressly provided in this
Agreement, the Grantee shall have all of the rights of a stockholder of the
Company with respect to any unvested Shares.
4. No Right to Continued Employment. This Agreement shall not be construed
as giving the Grantee the right to be retained in the employ of the Company.
5. Transferability. Shares subject to the Award and not then vested may not
be transferred by the Grantee other than by will or the laws of descent and
distribution. Except to the extent permitted by the foregoing, the Shares
subject to the Award and not then vested may not be sold, transferred, assigned,
pledged, hypothecated, encumbered or otherwise disposed of (whether by operation
of law or otherwise) or be subject to execution, attachment or similar process.
Upon any attempt to so sell, transfer, assign, pledge, hypothecate or encumber,
or otherwise dispose of such shares, the Award shall immediately become null and
void.
6. Withholding. By accepting this Award, the Grantee agrees to make
appropriate arrangements with the Company for the satisfaction of any applicable
federal, state or local income tax withholding requirements, including the
payment to the Company of all such taxes and requirements in connection with the
distribution or delivery of the Shares, or other settlement in respect of the
Shares, and the Company shall be authorized to take such action as may be
necessary as determined by the Company (including, without limitation,
withholding Shares otherwise deliverable to the Grantee hereunder and/or
withholding amounts from any compensation or other amount owing from the Company
to the Grantee) to satisfy all obligations for the payment of such taxes;
provided, however, that in no event shall the value of Shares so withheld by the
Company exceed the minimum withholding rates required by applicable statutes.
7. Certificates, Dividends.
(a) As soon as practicable following the execution and delivery of
this Agreement, a certificate covering the Shares shall be issued in the name of
the Grantee, which certificate shall be escrowed with the Secretary of the
Company (the "Escrow Agent"). Such certificate shall have stamped thereon a
legend indicating that the Shares are subject to the restrictions set forth in
this Agreement, as more fully described in Section 8 below. Upon the request of
the Grantee, and after the lapse of the applicable restrictions with respect to
the Shares in question, assuming the shares are then registered for resale or an
applicable exemption from registration exists (including pursuant to Rule 144 of
the Securities Exchange Act), the Company agrees to instruct the transfer agent
to remove any legends or restrictions from the certificates in connection with
any proposed sale or transfer of any of such Shares, including by obtaining an
appropriate opinion of counsel.
(b) In the event the Company shall effect any dividend or other
distribution in the form of shares of Common Stock, or there shall occur any
recapitalization, forward or reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, share
exchange or other similar corporate transaction or event which affects the
Common Stock such that an adjustment is appropriate in order to prevent dilution
or enlargement of the rights of the Grantee hereunder, then the Company shall,
in such manner as it may deem equitable, adjust the number and/or type of
securities issued to Grantee pursuant to this Agreement.
8. Restrictive Legends. All certificates representing Shares issued to
Grantee hereunder (and all certificates representing any other securities issued
to Grantee pursuant to Section 7(b) hereof) shall bear restrictive legends
thereon substantially as follows:
"THE SALE, ASSIGNMENT, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE PROVISIONS OF A
RESTRICTED STOCK AWARD AGREEMENT DATED AS __________________, 2006
BETWEEN THE COMPANY AND XXXX XXXXXXXXX DU PLESSIS XXXXXX."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE "ACT"), AND MAY NOT
BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE, PURSUANT TO
RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO
THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE
HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, SATISFACTORY TO
COUNSEL TO THE COMPANY, STATING THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE."
9. Compliance with Applicable Law. Prior to issuance and delivery of the
Shares, the Grantee will make or enter into such written representations,
warranties and agreements as the Committee may reasonably request in order to
comply with applicable securities laws or with this Agreement, including, but
not limited to, the representation letter annexed hereto as Exhibit A. The Award
is subject to the condition that if the listing, registration or qualification
of the Shares subject to the Award upon any securities exchange or under any law
or regulation, or the consent or approval of any governmental body, or the
taking of any other action is necessary or desirable as a condition of, or in
connection with, the vesting or delivery of Shares hereunder, the Shares shall
not vest or be delivered, in whole or in part, unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained, free of any conditions not acceptable to the Company. The Company
agrees to use all reasonable efforts to effect or obtain any such listing,
registration, qualification, consent or approval at its own cost.
10. Indemnification for Legal Costs. The Company agrees to indemnify the
Grantee for any out of pocket legal expenses incurred by the Grantee as a result
of any regulatory action that is brought by either the U.S. Securities and
Exchange Commission (the "SEC") or the Nasdaq Stock Market ("Nasdaq") against
the Grantee arising solely out the Company's failure to comply with all relevant
SEC regulations and Nasdaq Listing Rules applicable to this Award; provided,
however, that such indemnification obligation will not apply to the extent that
the Company's failure to so comply arises out of or relates to any action or
misrepresentation
(including, but not limited to, any of the representations made by the Grantee
on Exhibit A hereto not being true) on the part of the Grantee. The Company will
not indemnify the Grantee from any consequential or economic damages arising out
of or relating to the inability of the Company to issue any or all portion of
the Shares comprising the Award as a result of any regulatory action on the part
of the SEC or Nasdaq.
11. Notices. Any notice necessary under this Agreement shall be given by
registered or certified mail, return receipt requested, addressed to the Company
in care of its Secretary at the principal executive office of the Company and to
the Grantee at the address appearing in the personnel records of the Company for
such Grantee or to either party at such other address as either party hereto may
hereafter designate in writing to the other. Any such notice shall be deemed
given when mailed in accordance with the foregoing provisions.
12. Failure to Enforce Not a Waiver. The failure of the Company to enforce
at any time any provision of this Agreement shall in no way be construed to be a
waiver of such provision or of any other provision hereof.
13. Authority of Committee. The Committee shall have full authority to
interpret and construe the terms of this Agreement. The determination of the
Committee as to any such matter of interpretation or construction shall be
final, conclusive and binding.
14. Choice of Law. The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of Indiana without regard
to principles of conflicts of law.
15. Counterparts. This Agreement may be executed in two counterparts each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument. Any facsimile of this Agreement shall be considered
an original document.
16. Complete Agreement. This Agreement and those documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
17. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by the Grantee, the Company and their
respective permitted successors and assigns (including personal representatives,
heirs and legatees), and is intended to bind all successors and assigns of the
respective parties, except that the Grantee may not assign any of the Grantee's
rights or obligations under this Agreement except to the extent and in the
manner expressly permitted hereby.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Grantee has hereunto set his hand, effective as of the Grant
Date.
BRIGHTPOINT, INC.
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
Its: EVP / G.C. / Secy
/s/ Xxxx Xxxxxxxxx Du Plessis Xxxxxx
-----------------------------------------
Grantee: Xxxx Xxxxxxxxx Du Plessis Xxxxxx
EXHIBIT A TO RESTRICTED STOCK AWARD AGREEMENT
INVESTMENT REPRESENTATION LETTER
January __, 2006
Brightpoint, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Gentlemen:
In connection with my receipt of restricted shares (the "Shares") of common
stock of Brightpoint, Inc. (the "Company"), issuable pursuant to the Restricted
Stock Award Agreement dated as of January _______, 2006 between the Company and
the undersigned (the "Restricted Stock Award Agreement"), the undersigned hereby
represents, warrants to, and covenants with the Company as follows:
The undersigned understands that (A) the Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"), or the
securities laws of any state, based upon applicable exemptions from such
registration requirements; (B) the Shares are "restricted securities," as said
term is defined in Rule 144 of the Rules and Regulations promulgated under the
Act; (C) the Shares are subject to additional restrictions as set forth in the
Restricted Stock Award Agreement, (D) the Shares may not be sold or otherwise
transferred by the undersigned unless (i) they have been first registered under
the Act and all applicable state securities laws, or unless exemptions from such
registration provisions are available with respect to said resale or transfer
and (ii) all other restrictions on transfer pursuant to the Restricted Stock
Award Agreement; (D) a legend to the foregoing effect will be placed on the
certificate or certificates representing the Shares; and (E) stop transfer
instructions with respect to the foregoing will be placed with the transfer
agent for the Shares;
The undersigned is acquiring the Shares solely for the account of
the undersigned and for the purpose of investment and not with a view to, or for
resale in connection with, any distribution, with the meaning of the Act.
The undersigned agrees that he will not sell, transfer,
hypothecate or otherwise dispose of the Shares unless then permitted by the
Restricted Stock Award Agreement and other than pursuant to an effective
registration statement under the Act unless prior thereto the Company receives
either an opinion, in form and substance reasonably acceptable to the Company,
of the Company's counsel or counsel for the undersigned reasonably acceptable to
the Company, that the proposed transaction may be effected without compliance
with the registration provisions of the Act;
The undersigned has received or had access to the Company's
reports, registration statements and other filings with the Securities and
Exchange Commission prior to the date of the Restricted Stock Award Agreement;
EXHIBIT A TO INVESTMENT REPRESENTATION LETTER
Accredited investor. Accredited investor shall mean any person who comes within
any of the following categories, or who the issuer reasonably believes comes
within any of the following categories, at the time of the sale of the
securities to that person:
1. Any bank as defined in section 3(a)(2) of the Act, or any savings
and loan association or other institution as defined in section
3(a)(5)(A) of the Act whether acting in its individual or
fiduciary capacity; any broker or dealer registered pursuant to
section 15 of the Securities Exchange Act of 1934; any insurance
company as defined in section 2(a)(13) of the Act; any investment
company registered under the Investment Company Act of 1940 or a
business development company as defined in section 2(a)(48) of
that Act; any Small Business Investment Company licensed by the
U.S. Small Business Administration under section 301(c) or (d) of
the Small Business Investment Act of 1958; any plan established
and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if such plan has
total assets in excess of $5,000,000; any employee benefit plan
within the meaning of the Employee Retirement Income Security Act
of 1974 if the investment decision is made by a plan fiduciary,
as defined in section 3(21) of such act, which is either a bank,
savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total
assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are accredited
investors;
2. Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
3. Any organization described in section 501(c)(3) of the Internal
Revenue Code, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000;
4. Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director,
executive officer, or general partner of a general partner of
that issuer;
5. Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
$1,000,000;
6. Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in each of those
years and has a reasonable expectation of reaching the same
income level in the current year;
7. Any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered,
whose purchase is directed by a sophisticated person as described
in Rule 506(b)(2)(ii) and
8. Any entity in which all of the equity owners are accredited
investors.
