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EXHIBIT (a)(5)
AGREEMENT TO GRANT OPTIONS
TO: Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Executive Vice President,
Chief Financial Officer and Treasurer
This agreement ("Agreement") shall serve to acknowledge and
confirm the exchange and cancellation of eligible Options of the undersigned and
the grant by Brightpoint, Inc. ("Brightpoint") of New Options [and August 2001
Options] to the undersigned on the Replacement Grant Date. All capitalized terms
used herein and not defined herein shall have the meaning ascribed to them in
that certain Offer to Exchange dated August 31, 2001 ("Offer to Exchange").
1. The undersigned has, pursuant to and in accordance with the
Offer to Exchange, submitted a fully completed and duly executed Letter of
Transmittal which has been timely delivered to Brightpoint and which shall not
have been withdrawn prior to the Expiration Date of the Offer. Pursuant to the
Letter of Transmittal, the undersigned has tendered for exchange, and agrees to
the cancellation of, the Options specifically set forth therein.
2. In exchange for the undersigned's agreement to cancel
certain Options previously received by grant from Brightpoint, Brightpoint
hereby agrees to grant the undersigned a New Option or New Options, as
applicable, with the terms and conditions set forth in the Offer to Exchange,
covering _________ shares of Brightpoint's Common Stock (which amount equals
one-third (1/3) of the shares of Common Stock subject to the undersigned's
Option(s) which were tendered and accepted by Brightpoint for cancellation) on
the Replacement Grant Date, subject to the provisions of Paragraph 5 hereof. The
exercise price of each New Option or New Options, as applicable, will be the
closing sale price of Brightpoint's Common Stock as reported by the Nasdaq Stock
Market on the Replacement Grant Date. The vesting schedule of the Options
tendered by the undersigned and cancelled by Brightpoint will not carry over to
the New Option or New Options, as applicable. The New Option or New Options, as
applicable, will be subject to the terms and conditions under (a) the 1994 Plan
with respect to participants in the offer to exchange Options (the "Offer") who
are Officers or Directors of Brightpoint, or (b) the 1996 Plan with respect to
participants in the Offer who are neither Officers nor Directors of Brightpoint,
and (c) the applicable form of stock option agreement.
3. [In addition, a committee of the Board of Directors
administering certain of Brightpoint's stock option plans, has determined that
the undersigned is entitled to receive August 2001 Options (as defined in the
Offer to Exchange) covering __________ shares of Brightpoint's Common Stock
(such amount of options are hereinafter referred to as the undersigned's "August
Options"). However, upon Brightpoint's acceptance for cancellation on the
Cancellation Date of all or a portion of the undersigned's Options tendered for
exchange, the
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undersigned will become ineligible to receive the August Options until the
Replacement Grant Date. Therefore, in accordance with the Offer to Exchange and
this Agreement, Brightpoint hereby agrees to grant the undersigned, on the
Replacement Grant Date, subject to the provisions of Paragraph 5 hereof, the
August Options which represent the undersigned's share of the August 2001
Options that would have otherwise been granted to the undersigned but for the
undersigned's participation in the Offer. The August Options so granted on the
Replacement Grant Date will have an exercise price equal to the closing sale
price of Brightpoint's Common Stock as reported by the Nasdaq Stock Market on
the Replacement Grant Date and will otherwise have the terms and conditions as
set forth in the Offer to Exchange. The August Options will be subject to the
terms and conditions of the stock option plan under which they are granted, and
the applicable form of stock option agreement.]
4. The undersigned acknowledges that prior to the Replacement
Grant Date it is possible that Brightpoint might effect or enter into a merger,
combination, sale of assets or other similar transaction that may result in a
change of control of Brightpoint. While the agreement, set forth herein, to
grant New Options [and August Options] is a binding commitment on Brightpoint,
this Agreement and the terms hereof may not be a binding obligation on or
commitment of any successor to Brightpoint upon a change of control and,
accordingly, in the event of any change of control prior to the Replacement
Grant Date, such successor to Brightpoint may have no obligation to honor such
promise to grant New Options [and August Options] either on the Replacement
Grant Date or at any time thereafter.
5. In order to receive the New Option(s) [and August
Option(s)], the undersigned must continue to be employed by Brightpoint (or one
of its majority-owned or wholly owned subsidiaries) or serve as a Director of
Brightpoint, as of the Replacement Grant Date. This Agreement does not
constitute a guarantee of employment or continuation of directorship with
Brightpoint for any period. Unless otherwise expressly provided in the
undersigned's employment agreement or the applicable laws of a non-U.S.
jurisdiction, the undersigned's employment with Brightpoint will remain
"at-will" and can be terminated by the undersigned or Brightpoint at any time,
with or without cause or notice. If the undersigned's employment with
Brightpoint terminates before the Replacement Grant Date for any reason,
including but not limited to the undersigned's voluntary resignation, a
reduction in force, or as the result of a merger or acquisition of Brightpoint
by another company, or if the undersigned were a non-employee Director of
Brightpoint and no longer serves as a Director of Brightpoint on the Replacement
Grant Date, the undersigned will lose all rights pursuant to this Agreement with
respect to the grant of New Options [and August Options].
6. This Agreement is subject to the terms and conditions of
the Offer as set forth in: (i) the Offer to Exchange; (ii) the Memorandum from
Xxxxxx X. Xxxxxx dated August 31, 2001; (iii) the Letter of Transmittal
previously completed and submitted by the undersigned to Brightpoint; and (iv)
the Notice of Withdrawal (collectively the "Exchange Offer Documents"), all of
which are incorporated herein by reference. The undersigned represents and
warrants to Brightpoint that the undersigned has received and reviewed a copy of
the Exchange Offer Documents.
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7. This Agreement constitutes the entire agreement between
the undersigned and Brightpoint with respect to this transaction. This Agreement
may only be amended by means of a writing signed by the undersigned and a duly
authorized Officer of Brightpoint.
8. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana except to the extent that the
laws of the State of Delaware may be applicable.
9. The undersigned shall execute and deliver any and all
necessary documents or instruments and take all other action necessary or
appropriate to carry out and effectuate the provisions of this Agreement.
10. This Agreement shall be for the benefit of and shall be
binding upon the heirs, executors, administrators and successors of the parties
hereto.
11. Neither party to this Agreement may assign or transfer
this Agreement or any rights or obligations hereunder to any third parties,
except that Brightpoint may assign or transfer this Agreement and any of its
rights or obligations hereunder to a successor in interest.
12. In the event either party hereto shall resort to legal
action for the redress of a breach of this Agreement, the prevailing party shall
be entitled to an award of all costs and reasonable attorneys' fees.
Dated: , 2001
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Signature
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Print Name
Confirmed and accepted
in Indianapolis, Indiana on the ___ day
of __________ 2001
BRIGHTPOINT, INC.
By:
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Name:
Title:
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