EXHIBIT 10.1
EXECUTIVE STOCK OPTION AGREEMENT PURSUANT TO THE 2004 LONG-
TERM INCENTIVE PLAN OF BRIGHTPOINT, INC.
AGREEMENT made as of this ___ of _________, _________ (the
"Grant Date") between Brightpoint, Inc., an Indiana corporation ("Brightpoint"),
having its principal place of business in Plainfield, Indiana, and
______________ ("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, in connection with the Company's Executive Equity
Program (the "Program"), which was developed by the Committee in connection with
its administration of the Company's 2004 Long-Term Incentive Plan of the Company
(the "Plan"), the Company desires to grant to the Grantee options (the
"Options") under the Plan to purchase its common shares, par value $.01 per
share (the "Shares"), under, for the purposes of and pursuant to the terms of
the Plan;
WHEREAS, the Company and the Grantee understand and agree that
unless otherwise defined herein any terms used in this Agreement 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
Options to purchase all or any part of an aggregate of _________________ Shares
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 Options granted hereby are Non-Qualified Stock Options
under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Purchase Price. The purchase price of the Shares covered by
the Options shall be __________ per Share.
3. Exercise of Options. Subject to potential forfeiture and
reduction as set forth in Paragraph 5 hereof, the Options granted hereby shall
become exercisable as follows: one-third (1/3) of the Shares on the first
anniversary of the Grant Date; one-third (1/3) of the Shares on the second
anniversary of the Grant Date; and one-third (1/3) of the Shares on the third
anniversary of the Grant Date, provided that such schedule shall be accelerated
pursuant to the terms of any employment agreement between the Company and the
Grantee.
4. Term of Option. The Option shall expire on [Five years from
the date of Grant], unless earlier terminated as provided herein or in the Plan.
Except as provided in the following provisions of this
section, in any employment agreement between the Company and the Grantee that is
consistent with the provisions of the Plan, in the event that the Grantee's
employment is terminated by reason of the Grantee's death, Disability, or Normal
Retirement, the Options, to the extent exercisable at the time of Termination of
Service, may be exercised at any time within (a) a period of one (1) year after
the date of Termination of Service, or (b) the expiration of the stated term of
the Options, whichever is shorter; provided, however, that if the Grantee's
employment is terminated by reason of Disability or Normal Retirement and the
Grantee dies within such specified period, then the Options, to the extent
exercisable at the time of death, may be exercised for a period of one year from
the date of death or the expiration of the stated term of the Option, whichever
is shorter.
In the event that the Grantee's employment is terminated other
than by reason of death, Disability or Normal Retirement, the Options shall
thereupon automatically terminate, except that (i) if the termination occurs as
a result of the Grantee's voluntary resignation, the Options, to the extent
exercisable at the time of termination, shall be exercisable for a period of
thirty (30) days from termination or the expiration of the stated term of the
Options, whichever is shorter, and (ii) if the Grantee's employment is
involuntarily terminated without Cause (as defined in the Grantee's employment
agreement, if any), the Options may be exercised, to the extent exercisable on
the date of termination, for a period of six months or until the expiration of
the stated term of the Options, whichever is shorter.
5. Forfeiture. Notwithstanding anything else contained herein
or in the Grantee's employment agreement to the contrary, the Options 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 Option was granted (the
"Performance Cycle") (as defined in the Plan) were achieved. In the Program, the
Performance Goals have each been ascribed a 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 Options granted hereby equal to the Target Percentage for such
Performance Goal shall be forfeited by the Grantee, and such number of Options
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
Options granted hereunder will be forfeited and returned to the Plan. Any
Options that are not forfeited as set forth above, will vest in accordance with
the terms of Section 3 hereof, the Plan or the Grantee's employment agreement.
6. Non-Assignability. The Options 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 Options may not be assigned, pledged or 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 Options or of any rights granted hereunder contrary to
the provisions of this Section 6, or the levy of any attachment or similar
process upon the Options or such right, shall be null and void.
7. Exercise of Options and Issue of Shares. The Options may be
exercised in whole or in part (to the extent exercisable in accordance with
their terms) by giving written notice to the Company, together with the tender
of the purchase price and payment in cash of all withholding tax obligations
imposed on the Company. Such written notice shall be signed by the person
exercising the Options, shall state the number of Options 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 issuance 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
the Options or the Shares issuable pursuant to the Options shall be the
responsibility of the holder.
8. Purchase for Investment. Unless the offering and sale of
the Shares to be issued upon the particular exercise of the Options 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 unless and
until the following conditions have been fulfilled:
(a) The person(s) who exercise the Options, or any portion
thereof, 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 such 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).
9. 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.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, EVP
and General Counsel
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.
10. Governing Law. This Agreement shall be construed and
enforced in accordance with the law of the State or Indiana, without regard to
conflicts of laws rules or principles.
11. 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.
12. Plan Controlling. The Options 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.
13. Qualification of Rights. Neither this Agreement nor the
exercise of the Options shall be construed as giving the Grantee any right (a)
to be retained in the employ of the Company; or (b) as a shareholder with
respect to the Shares, until the certificates for the Shares have been issued
and delivered to the Grantee.
14. Representations and Warranties of Grantee. The Grantee
represents and warrants to the Company that (i) he or she has received and
reviewed a copy of the Plan, and (ii) he or she has read and is familiar with
the terms of this Agreement, including the potential forfeiture of the Options
pursuant hereto; and understands that neither the Options 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 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
