EXHIBIT 10.2
EXECUTIVE RESTRICTED STOCK
UNIT AWARD AGREEMENT
This Restricted Stock Unit Award Agreement ("Agreement") is made as of
___________, ("Date of Grant"), by Brightpoint, Inc., an Indiana Corporation
(the "Company" or "Brightpoint") and _________________ (the "Grantee"). In
connection with the Company's Executive Equity Program (the "Program"), which
was developed by the Committee (as defined under the Plan) in connection with
its administration of the Company's 2004 Long-Term Incentive Plan, as may be
amended from time to time (the "Plan"), pursuant to this Agreement the Grantee
is receiving a restricted stock unit Award ("Award") under Plan. The Award
constitutes an Other Stock Based Award (as defined under the Plan) and is a
grant of _____________ Brightpoint Restricted Stock Units (the "Restricted Stock
Units"). Each Restricted Stock Unit represents the right to receive one common
share of the Company subject to the fulfillment of the vesting conditions set
forth in this Agreement. The Award constitutes an Other Stock-Based Award under
the Plan, and is being submitted to Grantee in accordance with section 10(b)(v)
of the Plan. It is a condition to Grantee receiving the Award that Grantee
accept the terms, conditions and restrictions applicable to the Restricted Stock
Units as set forth in this Agreement.
The terms of the Award are as set forth in this Agreement and in the
Plan. The Plan is incorporated into this Agreement by reference, which means
that this Agreement is limited by and subject to the express terms and
provisions of the Plan. In the event of a conflict between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall control.
Capitalized terms that are not defined in this Agreement have the meanings given
to them in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and for other good and valuable consideration, the Company
hereby awards Restricted Stock Units to Grantee on the following terms and
conditions:
1. Award of Restricted Stock Units. The Company hereby grants to
Grantee _____________ (____________) Restricted Stock Units subject to the terms
and conditions set forth below. The number of Restricted Stock Units granted
hereunder is subject to reduction or forfeiture as set forth Section 4 below.
2. Restrictions. The Restricted Stock Units are being awarded to
Grantee subject to the transfer and forfeiture conditions set forth below, the
additional restrictions that are part of the Program, those which are set forth
in Section 4 hereof and those set forth in the Plan (the "Restrictions") which
shall lapse, if at all, as described in Section 3 below. For purposes of this
Award, the term Restricted Stock Units includes any additional Restricted Stock
Units granted to the Grantee with respect to Restricted Stock Units still
subject to the Restrictions.
a. Grantee may not directly or indirectly, by operation
of law or otherwise, voluntarily or involuntarily,
sell, assign, pledge, encumber, charge or otherwise
transfer any of the Restricted Stock Units still
subject to Restrictions. The Restricted Stock Units
shall be forfeited if Grantee violates or attempts to
violate the Restrictions.
b. Any Restricted Stock Units still subject to the
Restrictions shall be automatically forfeited upon
the Grantee's termination of employment with
Brightpoint or a Subsidiary for any reason, other
than death, Disability or Retirement.
The Company will not be obligated to pay Grantee any consideration
whatsoever for forfeited Restricted Stock Units.
3. Lapse of Restrictions.
a. The Restrictions applicable to the Restricted Stock
Units shall lapse, as long as the Restricted Stock
Units have not been forfeited as described in Section
2 above, as follows:
(i) As to one-third (1/3) of the Restricted
Stock Units, one year from the date hereof;
(ii) As to one-third (1/3) of the Restricted
Stock Units, two years from the date hereof;
(iii) As to one-third (1/3) of the Restricted
Stock Units, three years from the date
hereof;
(iv) As to all of the remaining Restricted Stock
Units upon a Change in Control of the
Company (as defined by the Plan, or the
Grantees Employment Agreement, if any);
(v) As to all of the remaining Restricted Stock
Units upon termination of Grantee's
employment by Brightpoint or a Subsidiary
due to the Disability of the Grantee;
(vi) As to all of the remaining Restricted Stock
Units if the Grantee dies.
(vii) As to all of the remaining Restricted Stock
Units upon the Retirement of the Grantee.
b. To the extent the Restrictions lapse under this
Section 3 with respect to the Restricted Stock Units,
they will be free of the terms and conditions of this
Award.
4. Forfeiture. Notwithstanding anything else contained herein,
including Section 3 hereof, and in addition to the Restrictions set forth in
Section 2 hereof, the Restricted Stock Units shall be subject to forfeiture in
accordance with the following terms. A determination will be made by the
Committee, in its sole and absolute discretion, prior to the first anniversary
of the Grant Date as to whether any or all of the target performance goals (the
"Performance Goals") (as defined in the Plan and as set forth in the Program)
for the fiscal year in which the Restricted Stock Unit was granted (the
"Performance Cycle") (as defined in the Plan) were achieved. In the Program, the
Performance Goals have each been ascribed a
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percentage (each a "Target Percentage") as follows: Income from Continuing
Operations (50%), Return on Invested Capital (20%) and Strategic Milestones
(30%). If any or all of the Performance Goals are not achieved for the
Performance Cycle, as determined by the Committee in its sole and absolute
discretion, the percentage of the total number of Restricted Stock Units granted
hereby equal to the Target Percentage for such Performance Goal shall be
forfeited by the Grantee, and such number of Restricted Stock Units shall be
correspondingly reduced and returned to Plan. If all of the Performance Goals
are not achieved for the Performance Cycle, as determined by the Committee in
its sole and absolute discretion, then all of the Restricted Stock Units granted
hereunder will be forfeited and returned to the Plan. Any Restricted Stock Units
that are not forfeited as set forth above, will vest in accordance with the
terms of Section 3 hereof, or the Plan.
5. Adjustments. If the number of outstanding Common Shares is changed
as a result of stock dividend, stock split or the like without additional
consideration to the Company, the number of Restricted Stock Units subject to
this Award shall be adjusted to correspond to the change in the outstanding
Common Shares.
6. Delivery of Certificates. Upon the lapse of Restrictions applicable
to the Restricted Stock Units, the Company shall deliver to the Grantee a
certificate representing a number of Common Shares equal to the number of
Restricted Stock Units upon which such Restrictions have lapsed.
7. Withholding Taxes. The Company is entitled to withhold an amount
equal to Brightpoint's required minimum statutory withholdings taxes for the
respective tax jurisdiction attributable to any Common Share or property
deliverable in connection with the Restricted Stock Units. Grantee may satisfy
any withholding obligation in whole or in part by electing to have Brightpoint
retain Common Shares deliverable in connection with the Restricted Stock Units
having a Fair Market Value on the date the Restrictions applicable to the
Restricted Stock Units lapse equal to the minimum amount required to be
withheld. "Fair Market Value" for this purpose shall be determined in accordance
with the terms of the Plan.
8. Voting and Other Rights.
a. Grantee shall have no rights as a shareholder of the
Company in respect of the Restricted Stock Units,
including the right to vote and to receive dividends
and other distributions (except as otherwise provided
in Section 5 of this Agreement), until delivery of
certificates representing Common Shares in
satisfaction of the Restricted Stock Units.
b. The grant of Restricted Stock Units does not confer
upon Grantee any right to continue in the employ of
the Company or a Subsidiary or to interfere with the
right of the Company or a Subsidiary, to terminate
Grantee's employment at any time.
9. Nature of Award. By entering into this Agreement, the Grantee
acknowledges his or her understanding that the grant of Restricted Stock Units
under this
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Agreement is completely at the discretion of Brightpoint, and that Brightpoint's
decision to make this Award in no way implies that similar awards may be granted
in the future. In addition, the Grantee hereby acknowledges that he or she has
entered into employment with Brightpoint or a Subsidiary upon terms that did not
include this Award or similar awards, that his or her decision to continue
employment is not dependent on an expectation of this Award or similar awards,
and that any amount received under this Award is considered an amount in
addition to that which the Grantee expects to be paid for the performance of his
or her services.
10. Funding. No assets or Common Shares shall be segregated or
earmarked by the Company in respect of any Restricted Stock Units awarded
hereunder. The grant of Restricted Stock Units hereunder shall not constitute a
trust and shall be solely for the purpose of recording an unsecured contractual
obligation of the Company.
11. Registration. The Company has filed a registration statement with
the Securities and Exchange Commission with respect to the Common Shares subject
to the Award. The Company intends to maintain the effectiveness of the
registration statement, but has no obligation to do so. If the registration
statement is not effective, Grantee will not be able to transfer or sell the
shares issued to Grantee pursuant to this Award unless exemptions from
registration under the applicable securities laws are available. Such exemptions
from registration are very limited and might be unavailable. Grantee agrees that
any resale by Grantee of the Common Shares issued pursuant to the Award shall
comply in all respects with the requirements of all applicable securities laws,
rules and regulations (including, without limitation, the provisions of the
Securities Act, the Exchange Act and the respective rules and regulations
promulgated thereunder) and any other law, rule or regulation applicable
thereto, as such laws, rules and regulations may be amended from time to time.
The Company shall not be obligated to either issue the Common Shares subject to
the Award, or permit the resale of any Common Shares subject to the Plan, if
such issuance or resale would violate any such requirements.
12. Governing Law. All questions concerning the construction, validity
and interpretation of this Agreement shall be governed by and construed
according to the internal law and not the law of conflicts of the State of
Indiana.
13. Waiver. The failure of the Company to enforce at any time any
provision of this Award shall in no way be construed to be a waiver of such
provision or any other provision hereof.
14. Actions by the Committee. The Committee may delegate its authority
to administer this Agreement. The actions and determinations of the Committee or
delegate shall be binding upon the parties.
15. Acceptance of Terms and Conditions. By accepting this Award within
30 days after the date of your receipt of this Agreement, you agree to be bound
by the foregoing terms and conditions, the Plan and any and all rules and
regulations established by Brightpoint in connection with awards issued under
the Plan. If you do not accept this Award within 30 days of your receipt of this
Agreement, you will not be entitled to the Restricted Stock Units.
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16. Plan Documents. The Plan is available from the Company's corporate
headquarters at 000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention Xxxxxx
X. Xxxxx, Executive Vice President, General Counsel and Secretary.
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, Grantee
Date:
BRIGHTPOINT, INC.
By:
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Name:
Title:
Date:
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