EXHIBIT 4.1
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2, dated as of April 12, 2004 (the "Amendment"), is
between Brightpoint, Inc., a Delaware corporation (the "Company"), and American
Stock Transfer & Trust Company, a New York limited purpose trust company, as
Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of February 20, 1997, as amended on January 4, 1999, (the
"Rights Agreement"), defining the terms of the Rights (as defined therein); and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
desires to amend the Rights Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereby agree as follows:
1. AMENDMENTS TO SECTION 1
(a) The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is amended to increase the percentage of beneficial ownership
required to trigger the exercisability of the Rights from 15% to 20%,
so that such Section 1(a) is hereby amended to delete all references to
15% and replace such percentage with 20%:
(b) The following definition is hereby added to the end of Section 1 to
read as follows:
"(q) "TIDE Committee" shall have the meaning set forth in
Section 28 hereof."
2. AMENDMENTS TO SECTION 7
(a) Section 7(a) of the Rights Agreement is amended to extend the Final
Expiration Date from February 20, 2007 to April 12, 2014, so that such
Section 7(a) is hereby amended to delete all references to "February
20, 2007" and replace such date with "April 12, 2014."
(b) Section 7(b) of the Rights Agreement is amended to increase the
Purchase Price for each one one-thousandth of a Preferred Share from
$115 to $135 to reflect an updated potential long-term trading value of
the Company's Common Stock as a result of the extension of the Final
Expiration Date, so that such Section 7(b) is hereby amended to delete
the reference to $115 and replace such amount with $135.
3. AMENDMENT TO SECTION 28
Section 28 of the Rights Agreement is amended to add a Three-Year
Independent Director Evaluation ("TIDE") policy, and is hereby amended
by inserting two new paragraphs to the end of Section 28 as follows:
"Without limiting the generality of the foregoing, it is
understood that the Three-Year Independent Director Evaluation
Committee (the "TIDE Committee") (as described below) of the
Board of Directors of the Company shall review and evaluate
this Agreement in order to consider whether the maintenance of
this Agreement continues to be in the best interests of the
Company and its stockholders, at least once every three years,
or sooner than that if (i) any Person shall have made a
proposal to the Company or its stockholders, or taken any
other action that, if effective, could cause such Person to
become an Acquiring Person, and (ii) a majority of the members
of the TIDE Committee shall deem such review and evaluation
appropriate after giving due regard to all relevant
circumstances. Following each such review, the TIDE Committee
will communicate its conclusions to the full Board of
Directors of the Company, including any recommendation in
light thereof as to whether this Agreement should be modified
or the Rights should be redeemed. The TIDE Committee shall be
comprised of members of the Corporate Governance and
Nominating Committee of the Board of Directors who are
"independent" as defined under applicable law and NASDAQ
listing standards (or the listing standards of the principal
exchange or trading system on which the Company's shares of
Common Stock are listed or admitted for trading) in effect
from time to time, and who are selected by the Corporate
Governance and Nominating Committee of the Board of Directors,
and may be the full Corporate Governance and Nominating
Committee of the Board of Directors.
The TIDE Committee shall have the power to set its own agenda
and to retain, at the expense of the Company, independent
legal, accounting or other professional consultants selected
by the TIDE Committee, for any matters relating to the purpose
of the TIDE Committee. The Company shall cause its employees
to make themselves available to cooperate with the TIDE
Committee for any matters related to its purpose. The TIDE
Committee shall have the authority to review all information
of the Company and to consider any and all factors they deem
relevant to an evaluation of whether to maintain or modify the
Agreement or redeem the Rights."
4. AMENDMENT TO SECTION 32
Section 32 of the Rights Agreement is amended to change the law
governing the Rights Agreement to be that of the current jurisdiction
of incorporation of the Company, and is hereby amended to read as
follows:
"This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the
state of incorporation of the Company and for all purposes
shall be governed by and construed in accordance with the laws
of such state of incorporation applicable to contracts to be
made and performed entirely within such state."
5. AMENDMENT TO RIGHT CERTIFICATE
The Form of Right Certificate attached as Exhibit B to the Rights
Agreement is amended to conform with the changes described in this
Amendment, and is hereby amended and restated in its entirety as set
forth in Annex A hereto.
2
6. SEVERABILITY
If any term, provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction or other authority to be invalid, void, or
unenforceable, the reminder of the terms, provisions, covenants and restrictions
of this Amendment shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
7. COUNTERPARTS
This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one
and the same instrument.
8. EFFECT OF AMENDMENT
Except as expressly modified herein, the Rights Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first above written.
BRIGHTPOINT, INC.
Attest:
By /s/ Xxxxx X. Xxxxxxxxx By /s/ Xxxxxx X. Xxxxx
--------------------------------- --------------------------------------
Title: Associate General Counsel and Title: Executive Vice President,
Assistant Secretary General Counsel and Secretary
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Rights Agent
Attest:
By /s/ Xxxxx Xxxxxx By /s/ Xxxxxxx X. Xxxxxx
--------------------------------- --------------------------------------
Title: Assistant Secretary Title: Vice President
3
Annex A
EXHIBIT "B"
FORM OF RIGHT CERTIFICATE
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER APRIL 12, 2014 OR EARLIER IF REDEMPTION OR EXCHANGE
OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER RIGHT, AND TO EXCHANGE
UPON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES AS
SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO ANY PERSON WHO BECOMES AN
ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) MAY BECOME NULL AND VOID.
Right Certificate
BRIGHTPOINT, INC.
This certifies that __________________________, or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of February 20, 1997 (as amended from time to
time, the "Rights Agreement"), between Brightpoint, Inc., a Delaware corporation
(the "Company"), and American Stock Transfer & Trust Company (the "Rights
Agent"), to purchase from the Company at any time after the Distribution Date
(as such term is defined in the Rights Agreement) and prior to the earlier of
(i) 5:00 P.M., New York, New York time, on April 12, 2014, or (ii) the time at
which the Rights are redeemed or exchanged (as defined below), at the principal
office of the Rights Agent, or at the office of its successor as Rights Agent,
one one-thousandth of a fully-paid nonassessable share of Series A Junior
Participating Preferred Stock, par value $.01 per share (the "Preferred
Shares"), of the Company, at a purchase price of $135 per one one-thousandth of
a Preferred Share (the "Purchase Price"), upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number of one
one-thousandths of a Preferred Share which may be purchased upon exercise
hereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of April 12, 2004, based upon the Preferred Shares as
constituted at such date. As provided in the Rights Agreement, the Purchase
Price and the number of one one-thousandths of a Preferred Share which may be
purchased upon the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate (i) may be redeemed by the Company at a redemption price of
$.01 per Right, payable in cash or the Company's Common Stock, par value $.01
per share (the "Common Stock"), or (ii) may be exchanged in whole or in part for
Common Stock. No fractional Preferred Shares will be issued upon the exercise of
any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-thousandth of a Preferred Share, which may, at the election
of the Company, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of _______________________, _____.
ATTEST: BRIGHTPOINT, INC.
By By
------------------------------- --------------------------------------
Title: Title:
Countersigned:
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Rights Agent
By
------------------------------------------
By
------------------------------------------
Authorized Officer
2
