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Exhibit (d)(2)(B)
STOCK OPTION AGREEMENT
PURSUANT TO 1994 STOCK OPTION PLAN OF
BRIGHTPOINT, INC.
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AGREEMENT made as of this _____ day of ____________, ______ (the "Grant
Date") between Brightpoint, Inc., a Delaware corporation ("Brightpoint"), having
its principal place of business in Indianapolis, Indiana, and
___________________ ("Grantee"),
WHEREAS, the Grantee is a non-employee director of Brightpoint (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 1994 Stock Option Plan of the
Company, as amended (the "Plan"), pursuant to the terms thereof;
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 the right
and option ("Option") 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. The Grantee
acknowledges receipt of a copy of the Plan.
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2. Purchase Price. The purchase price of the Shares covered by the
Option 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, provided that such schedule shall be
accelerated as provided in the Plan in accordance with the determination of the
Company's Board of Directors or a committee thereof responsible for
administering the Plan.
4. Term of Option. The Option shall terminate and expire five (5) years
from the date of this Agreement, unless earlier terminated as provided herein or
in the Plan.
Except as provided in the following provisions of this section, if the
Grantee ceases to be a director 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 serve as a director. 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
directorship. In the event the Grantee is removed as a director of the Company
for cause, the Option, to the extent not then exercised, shall terminate on such
date of cessation of directorship.
In the event of the death of the Grantee while serving as a director of
the Company or within ninety (90) days after cessation from serving as a
director of the Company other than as a result of removal for cause, the Option
may be exercised at any time within one year after such date of death of the
Grantee, but only to the extent such Option was exercisable by the Grantee on
the date of death.
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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 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 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
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
Option, shall state the number of Shares with respect to which such 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 the Options or the Shares issuable pursuant to the Options
shall be the responsibility of the holder.
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
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"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 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 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).
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 continue as
a director 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.
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 understands that neither the Option nor any of the
rights and interests under the Plan or this
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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
hand, all as of the day and year first above written.
BRIGHTPOINT, INC.
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Name:
Title:
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, Grantee
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