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EXHIBIT (d)(2)(C)
NON-QUALIFIED STOCK OPTION AGREEMENT
BRIGHTPOINT, INC.
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AGREEMENT made as of this ________________, _________ (the
"Grant Date") between Brightpoint, Inc., a Delaware corporation (the "Company"),
having its principal place of business in Indianapolis, Indiana, and
________________ (the "Grantee"),
WHEREAS, the Grantee is an employee of Brightpoint or one of
its Subsidiaries (collectively, the "Company") and is in a position to
contribute significantly to the Company's long-term growth and strategic goals;
WHEREAS, the Company desires to grant to the Grantee a
Non-Qualified Option to purchase shares of its common stock, par value $.01 per
share (the "Shares"), under and for the purposes of the 1996 Stock Option Plan
of the Company (the "Plan"), as amended, pursuant to the terms thereof;
WHEREAS, the Company and the Grantee understand and agree that
unless otherwise defined herein any terms used herein have the same meanings as
in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Grantee
the right and option ("Option") to purchase all or any part of an aggregate of
_________________ (_________) shares of its Common Stock, $.01 par value, on the
terms and conditions and subject to all the limitations set forth herein and in
the Plan, which is incorporated herein by reference. The Grantee acknowledges
receipt of a copy of the Plan.
2. Purchase Price. The purchase price of the Shares covered by the
Option
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shall be $_________ per share.
3. Exercise of Option. The Option granted hereby shall become
exercisable as follows: ________Shares on the first anniversary of the Grant
Date; ________ Shares on the second anniversary of the Grant Date; and
________Shares on the third anniversary of the Grant Date.
4. Term of Option. The Option shall terminate five (5) years from the
date of this Agreement, but shall be subject to earlier termination as provided
herein or in the Plan.
If the Grantee ceases to be an employee of the Company for any reason
other than death, or removal for "cause", the Option may be exercised within
ninety (90) days after the date the Grantee ceases to be an employee, but may
not be exercised thereafter. In such event, the Option shall be exercisable only
to the extent that the right to purchase Shares under the Plan has accrued and
is in effect at the date of such cessation of employment. In the event the
Grantee is removed from employment for "cause" (which shall mean conduct which,
in the opinion of the Board of Directors, amounts to fraud, dishonesty or
negligence in the performance of one's duties as a director), the Option shall
terminate on the date of removal.
In the event of the death of the Grantee while an employee of the
Company, the Option shall be exercisable to the extent exercisable but not
exercised as of the date of death and in such event, the Option must be
exercised, if at all, within ninety (90) days after the date of death of the
Grantee, or, if earlier, within the originally prescribed term of the Option.
5. Non-Assignability. The option shall not be transferable by the
Grantee otherwise than by will or by the laws of descent and distribution and
shall be exercisable, during the Grantee's lifetime, only by the Grantee. The
Option shall not be assigned, pledged or
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hypothecated in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process. Any attempted transfer,
assignment, pledge, hypothecation or other disposition of the Option or of any
rights granted hereunder contrary to the provisions of this Section 5, or the
levy of any attachment or similar process upon the Option or such right, shall
be null and void.
6. Exercise of Option and Issue of Shares. The Option may be exercised
in whole or in part (to the extent that it is exercisable in accordance with its
terms) by giving written notice to the Company, together with the tender of the
Option price. Such written notice shall be signed by the person exercising the
Option, shall state the number of Shares with respect to which the Option is
being exercised, shall contain any warranty required by Section 7 below and
shall otherwise comply with the terms and conditions of this Agreement and the
Plan. The Company shall pay all original issue taxes with respect to the issue
of the Shares pursuant hereto and all other fees and expenses necessarily
incurred by the Company in connection herewith. Except as specifically set forth
herein, the holder acknowledges that any income or other taxes due from him or
her with respect to this Option or the Shares issuable pursuant to this Option
shall be the responsibility of the holder. The holder of this Option shall have
rights as a shareholder only with respect to any Shares covered by the Option
after due exercise of the Option and tender of the full exercise price for the
Shares being purchased pursuant to such exercise.
7. Purchase for Investment. Unless the offering and sale of the Shares
to be issued upon the particular exercise of the Option shall be effectively
registered under the Securities Act of 1933, as now in force or hereafter
amended, or any successor legislation (the "Act"), the Company shall be under no
obligation to issue the Shares covered by such exercise
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unless and until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall warrant to the Company,
at the time of such exercise, that such person(s) are acquiring such Shares for
his or her own account, for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares, in which event the
person(s) acquiring such Shares shall be bound by the provisions of the
following legend which shall be endorsed upon the certificate(s) evidencing
their option Shares issued pursuant to such exercise:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"). Such shares
may not be sold, transferred or otherwise disposed of unless they have
first been registered under the Act, or unless, in the opinion of
counsel satisfactory to the Company's counsel, such registration is not
required."
(b) The Company shall have received an opinion of its counsel that
the shares may be issued upon such particular exercise in compliance with the
Act without registration thereunder. Without limiting the generality of the
foregoing, the Company may delay issuance of the Shares until completion of any
action or obtaining of any consent, which the Company deems necessary under any
applicable law (including without limitation state securities or "blue sky"
laws).
8. Notices. Any notices required or permitted by the terms of this
Agreement or the Plan shall be given by registered or certified mail, return
receipt requested, addressed as follows:
To the Company: Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, EVP and
General Counsel
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To the Grantee:
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given when
mailed in accordance with the foregoing provisions. Either party hereto may
change the address of which notices shall be given by providing the other party
hereto with written notice of such change.
9. Governing Law. This Agreement shall be construed and enforced in
accordance with the law of the State or Indiana, except to the extent the law of
the State of Delaware may be applicable.
10. Benefit of Agreement. This Agreement shall be for the benefit of
and shall be binding upon the heirs, executors, administrators and successors of
the parties hereto.
11. Plan Controlling. The Option and the terms and conditions set forth
in the Agreement are subject in all respects to the terms and conditions of the
Plan, which are controlling. All determinations and interpretations of the
Company shall be binding and conclusive upon the Grantee and his or her legal
representatives.
12. Qualification of Rights. Neither this Agreement nor the exercise of
the Option shall be construed as giving the Grantee any right (a) to be retained
in the employ of the Company or any of its Subsidiaries; or (b) as a shareholder
with respect to the Shares, until the certificates for the Shares have been
issued and delivered to the Grantee.
13. Representations and Warranties of Participant. The Participant
represents and warrants to the Company that he or she has received and reviewed
a copy of the Plan; and
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understands that neither the Option nor any of the rights and interests under
the Plan or this Agreement may be assigned, encumbered or otherwise transferred
except, in the event of death, by will or the laws of descent and distribution.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by Xxxxxx X. Xxxxx, its duly authorized officer, and the Grantee has
hereunto set his or her hand, all as of the day and year first above written.
BRIGHTPOINT, INC.
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Xxxxxx X. Xxxxx, Executive Vice President and
General Counsel
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, Grantee
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