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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of March 5, 1998 by and between Brightpoint, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, a Delaware corporation (the "Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated of even
date herewith (the "Purchase Agreement"), between the Company and the
Purchaser, which provides for the sale by the Company to the Purchaser of
$335,000,000 aggregate principal amount at maturity of the Company's Liquid
Yield Option(TM) Notes due 2018 (Zero Coupon-Subordinated) (the "XXXXx"(TM)) and
the grant by the Company to the Purchaser of the option to purchase all or any
part of an additional $45,000,000 aggregate principal amount at maturity of its
XXXXx. In order to induce the Purchaser to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement or Indenture. As used
in this Agreement, the following terms shall have the following meanings:
Closing Date: March 10, 1998, or such other date as may be agreed upon for
the sale and purchase of the XXXXx pursuant to the Purchase Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Indenture: The Indenture, to be dated as of March 11, 1998, between
the Company and The Chase Manhattan Bank, as Trustee, pursuant to which the
XXXXx are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Person: An individual, partnership, limited liability company, corporation
association, trust, joint venture or any other unincorporated organization or
entity.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any
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portion of the Registrable Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including post-
effective amendments and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Registrable Securities: All XXXXx and shares of Common Stock that are
Restricted Securities.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the Company that
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
Restricted Securities: Any and all XXXXx upon original issuance thereof
(and any shares of Common Stock issued upon conversion thereof other than
pursuant to an effective registration statement under the Securities Act) and
at all times subsequent thereto until, as to any Restricted Security, (i) the
sale of such Restricted Security has been effectively registered under the
Securities Act and such Restricted Security has been disposed of in accordance
with the method of distribution set forth in the Registration Statement
relating thereto or (ii) it is distributed to the public, or is otherwise able
to be sold, pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the Securities Act.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Shelf Registration: See Section 3 hereof.
Special Counsel: Xxxxx, Xxxxx & Xxxxx, special counsel to the Purchaser or
such other special counsel as may be designated by the holders of a majority in
aggregate principal amount at maturity of Registrable Securities outstanding.
TIA: The Trust Indenture Act of 1939, as amended.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Securities. The securities entitled to the benefits of this Agreement
are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is deemed to be a holder
of
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Registrable Securities whenever such Person beneficially owns
Registrable Securities; provided that only Registrable Securities of holders
who are registered holders of Registrable Securities shall be counted for
purposes of calculating any proportion of holders of Registrable Securities
entitled to take action or give notice pursuant to this Agreement.
SECTION 3. SHELF REGISTRATIONS
(a) Shelf Registrations. As promptly as practicable and in no event later
than 90 days after the date hereof, the Company shall prepare and file with the
SEC a Registration Statement (which may include any previously filed
Registration Statement meeting the requirements set forth herein) under the
Securities Act for an offering to be made on a continuous basis pursuant to
Rule 415 (or any similar rule that may be adopted by the SEC) under the
Securities Act covering all of the Registrable Securities (the "Shelf
Registration").
(b) The Shelf Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by such
holders in the manner or manners designated by them.
(c) The Company shall use all reasonable efforts to cause the Shelf
Registration to become effective under the Securities Act in accordance with
Section 3(a) hereof and shall keep the Shelf Registration continuously
effective for a period of two years from the Closing Date or such shorter
period that will terminate when all Registrable Securities covered by the Shelf
Registration are no longer Restricted Securities. The Company shall also
supplement or make amendments to any Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used by
the Company or if required by the Securities Act.
SECTION 4. REGISTRATION PROCEDURES
In connection with the registration obligations pursuant to Section 3
hereof, the Company shall use all reasonable efforts to effect such
registration to permit the sale of such Registrable Securities in accordance
with the then intended method or methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC, within the time period specified in
Section 3, a Registration Statement or Registration Statements on any
appropriate form under the Securities Act, which form shall be available for
the sale of the Registrable Securities by the holders thereof in accordance
with the intended method or methods of distribution thereof, and use all
reasonable efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to the Special Counsel copies of
the Registration Statement or Prospectus and all such documents in the form
proposed to be filed at least three business days prior thereto, which
documents will be subject to the review of the Special Counsel, and the Company
shall not
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file any such Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which the Special Counsel shall
reasonably object on a timely basis, unless the Company is advised by its
counsel that such Registration Statement or amendment thereto or any Prospectus
or supplement thereto is required to be filed by applicable law;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period; cause
the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act;
(c) promptly notify the Special Counsel and, with respect to any event
contemplated by clauses (i)(B), (iv), (v), (vi) or (vii) hereof, notify such
holders promptly (and in each case, if requested, confirm any such oral or
telephonic notice in writing), (i) when a Prospectus or any Prospectus
supplement or post-effective amendment related to such Registrable Securities
(A) has been filed, and, (B) with respect to a Registration Statement or any
post-effective amendment related to such Registrable Securities, when the same
has become effective, (ii) of the receipt of any comments from the SEC, (iii)
of any request by the SEC for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iv) of the
issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(v) if at any time the representations and warranties of the Company contained
in any agreement entered pursuant to paragraph (1) below in connection with the
sale of Restricted Securities by selling holders thereof cease to be true and
correct, (vi) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale or exchange in any jurisdiction of the
United States of America or the initiation of any proceeding for such purpose,
(vii) of the happening of any event that makes any statement of a material fact
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue or that
requires the making of any changes in a Registration Statement or related
Prospectus so that such documents will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (provided that the timely filing of
a report under the Exchange Act which is incorporated by reference in the
Registration Statement and related Prospectus shall constitute effective notice
under this subsection (vii)), and (viii) of the determination of the Company
that a post-effective amendment to a Registration Statement would be
appropriate;
(d) use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale or exchange in any jurisdiction of the United
States of America, as promptly as practicable;
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(e) if reasonably requested by any holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as such holder
reasonably requests to be included therein as is required by applicable law,
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received notification of
the matters to be incorporated in such Prospectus supplement or such
post-effective amendment, and (iii) supplement or make amendments to any
Registration Statement as is required by applicable law;
(f) furnish to each selling holder of Registrable Securities upon request,
and the Special Counsel, without charge, at least one conformed copy of the
Registration Statement or Statements and any post-effective amendment thereto,
including financial statements and schedules, without charge, as well as all
documents incorporated therein by reference or deemed incorporated therein by
reference and all exhibits (including those previously furnished or
incorporated by reference) (provided that the Company may charge such holders
reasonable duplication costs for copies of any exhibit that is not specifically
incorporated by reference in the document to which it is an exhibit), at the
earliest practicable time under the circumstances after the filing of such
documents with the SEC;
(g) deliver to each selling holder of Registrable Securities and the
Special Counsel, without charge, as many copies of the Prospectus or
Prospectuses (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company consents
to the use of such Prospectus or any amendment or supplement thereto in
accordance with applicable law by each of the selling holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(h) prior to any public offering of Registrable Securities, use all
reasonable efforts to register or qualify or cooperate with the selling
holders of Registrable Securities and the Special Counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale, as the case
may be, under the securities or Blue Sky laws of such state or local
jurisdictions in the United States as any seller reasonably requests in
writing; keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, however, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (iii) register or qualify securities prior to the
effective date of any Registration Statement under Section 3 hereof;
(i) cooperate with the selling holders of Registrable Securities to
facilitate the
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timely preparation and delivery of certificates representing Registrable
Securities, which certificates shall not bear any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered
in such names, in all cases consistent with the requirements set forth in the
Indenture, as the holders may request;
(j) subject to the exceptions contained in (i), (ii) and (iii) of
subsection (h) hereof, use all reasonable efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other Federal, state and local governmental regulatory
agencies or authorities in the United States as may be necessary, by virtue of
the business and operations of the Company, to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities and
cooperate with each seller of Registrable Securities in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc.;
(k) upon the occurrence of any event contemplated by paragraph 4(c)(vii)
or 4(c)(viii) above, as promptly as practicable thereafter, prepare and file
with the SEC a supplement or post-effective amendment to the applicable
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(l) enter into such customary agreements and take all such other actions
in connection therewith (including those reasonably requested by the holders of
a majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities; provided, however,
that the Company shall not be required to enter into an underwriting agreement
in connection with any such disposition;
(m) cause the Indenture to be qualified under the TIA not later than the
effective date of any Registration Statement; and in connection therewith,
cooperate with the Trustee to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use all reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner; and
(n) comply with all applicable rules and regulations of the SEC and make
generally available to the Company's securityholders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder no later than the date required for the filing of the applicable
forms referred to in Rule 158 under the Exchange Act, commencing on the first
day of the first fiscal quarter of the Company commencing after the effective
date of a Registration Statement, which statement shall cover said 12-month
period.
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Purchaser shall, as a condition to the sale of any Registrable Security,
require the holder to whom such Registrable Security is sold to agree to be
bound by this Agreement with respect to the obligations of holders of
Registrable Securities set forth herein. The Company may require each selling
holder of Registrable Securities under a Shelf Registration to furnish to the
Company such information regarding such selling holder and the distribution of
such Registrable Securities, including the information specified in Item 507 of
Regulation S-K under the Securities Act, as the Company may from time to time
reasonably request in writing, and each holder in acquiring such Registrable
Securities agrees to supply such information to the Company promptly upon such
request.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that (i) such holder will promptly (and in any case
within two business days after completion of such sale or distribution) notify
the Company following any sale of Registrable Securities under a Shelf
Registration or distribution to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A under the Securities Act)
and (ii) upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(c)(iii), 4(c)(iv), 4(c)(vi), or
4(c)(vii) hereof, such holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus and
will not resume disposition of such Registrable Securities until such holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(k) hereof, or until it is advised in writing by the Company that the
use of the applicable Prospectus may be resumed and has received copies of the
Registration Statement and Prospectus and any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference in such
Prospectus.
SECTION 5. REGISTRATION EXPENSES
The Company shall pay all fees and expenses incurred by it or Purchaser
incident to the performance of or compliance with this Agreement by the Company
including, without limitation, (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or Blue Sky laws (including reasonable fees and disbursements of counsel for
any underwriters or holders in connection with Blue Sky qualification of any
of the Registrable Securities), (iii) all expenses in preparing or assisting in
preparing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, other documents relating to
the Company's performance of and compliance with this Agreement, and (iv) all
rating agency fees but excluding fees of any special accountants retained by
the selling holders, counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a holder of Registrable Securities.
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SECTION 6. INDEMNIFICATION; CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless the Purchaser and
each holder of Registrable Securities and each person, if any, who controls the
Purchaser or any holder of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
reasonable expense (including the reasonable fees and disbursements of
counsel) whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
reasonable expense (including the reasonable fees and disbursements of
counsel) whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser or such holder of Registrable Securities (which also acknowledges the
indemnity provisions herein) and each person, if any, who controls the
Purchaser or any such holder of Registrable Securities expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
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(b) In connection with any Shelf Registration in which a holder,
including, without limitation, the Purchaser, of Registrable Securities is
participating, in furnishing information relating to such holder of Registrable
Securities to the Company in writing expressly for use in such Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto, the holders of such Registrable Securities agree,
severally and not jointly, to indemnify and hold harmless the Purchaser and
each person, if any, who controls the Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and the
Company, its directors and officers who sign a Registration Statement and each
person, if any, who controls the Company within the meaning of either such
Section, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such holder of Registrable
Securities (which also acknowledges the indemnity provisions herein) and each
person, if any, who controls any such holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
The Purchaser agrees to indemnify and hold harmless the Company, the
holders of Registrable Securities, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Company or any holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Purchaser expressly for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any
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proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Purchaser and all persons, if any, who control the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, (b) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section and (c)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all holders of Registrable Securities and all persons, if any, who
control any holders of Registrable Securities within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the Purchaser and control persons of the
Purchaser, such firm shall be designated in writing by the Purchaser and shall
be reasonably acceptable to the Company. In such case involving the holders of
Registrable Securities and such controlling persons of holders of Registrable
Securities, such firm shall be designated in writing by holders of a majority
in aggregate principal amount at maturity of Registrable Securities. In all
other cases, such firm shall be designated by the Company. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested, in writing,
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 6 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable
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considerations.
The relative fault of the Company on the one hand and the holders of the
Registrable Securities or the Purchaser on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the holder
of the Registrable Securities or the Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 6(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission.
Notwithstanding the provisions of this Section 6, no holder of Registrable
Securities shall be required to indemnify or contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such holder of Registrable Securities and distributed to the public were
offered to the public exceeds the amount of any damages that such holder of
Registrable Securities has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who controls the
Purchaser or any holder of Registrable Securities within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the
same rights to contribution of such Purchaser or holder, and each director
of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company.
SECTION 7. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific
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performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in
respect of such breach, they shall waive the defense that a remedy at law would
be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented
(other than to cure any ambiguity or correct or supplement any provision
herein), and waivers or consents to departures from the provisions hereof may
not be given, unless the Company has obtained the written consent of holders of
a majority of the then outstanding aggregate principal amount at maturity of
Registrable Securities, except in the case of the Purchaser prior to
distribution of the XXXXx to the holders, then the consent of the Purchaser.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of at least a majority in aggregate principal amount at maturity of the
Registrable Securities being sold by such holders.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, or telecopier:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with
the provisions of this Section 8(d), except with respect to the
Purchaser prior to distribution of the XXXXx, then to the Purchaser at
the address set forth on the first page of the Purchase Agreement,
attention of Xxxxxxx X'Xxxxx, (fax: (000) 000-0000), with a copy to
Xxxxxxx X. Campbell, Mayer, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 (fax: (000) 000-0000); and
(ii) if to the Company, to Brightpoint, Inc., 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, attention of Xxxxxx X. Xxxxx (fax:
(000) 000-0000), with a copy to Xxxxx X. Xxxxx, Xxxxxx Xxxxxxxxxx LLP,
000 Xxxxxxxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000), and
thereafter by such other address, notice of which is given in
accordance with the provision of this Section 8(d).
All such notices and communications shall be deemed to have been duly
given: when
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delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; one business day after being
sent by next-day delivery by a solvent air courier; when answered back, if
telexed; and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
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(k) Securities Held by the Company or its Affiliates; Calculation of
Percentage of Registrable Securities. Whenever the consent or approval of
holders of a specified percentage of Registrable Securities is required
hereunder, (i) Registrable Securities held by the Company or any of its
affiliates shall not be counted in determining whether such consent or approval
was given by the holders of such required percentage or amount and (ii) any
shares of Common Stock that are included among the outstanding Registrable
Securities, or the applicable portions thereof, shall be deemed, subject to the
terms of clause (i) above, to represent the principal amount at maturity of
XXXXx from which such shares were converted at the time of such conversion.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BRIGHTPOINT, INC.
By /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
and Chief Executive Officer
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By /s/ Xxxxxxx X. X'Xxxxx
----------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Vice President
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