As filed with the Securities and Exchange Commission on September 4, 2003.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
BRIGHTPOINT, INC.
(Exact name of registrant as specified in its charter)
Delaware 35-1778566
--------------------------------------------- ---------------------------------------------
(State or other jurisdiction of incorporation (I.R.S. Employer Identification No.)
or organization)
501 Airtech Parkway, Plainfield, Indiana 46168
------------------------------------------ -------------------
(Address of principal executive offices) (Zip Code)
Brightpoint, Inc. Independent Director Stock Compensation Plan
--------------------------------------------------------------
(Full title of the plan)
Robert J. Laikin, Chairman of the Board, Chief Executive Officer
Brightpoint, Inc.
501 Airtech Parkway
Plainfield, Indiana 46168
(Name and address of agent for service)
(317) 707-2355
-------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Blank Rome LLP
405 Lexington Avenue
New York, New York 10174
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Aggregate Maximum
Title of Securities to Amount to be Offering Price Aggregate Amount of
be Registered Registered (1) Per Share(2) Offering Price (2) Registration Fee
------------- -------------- ------------ ------------------ ----------------
Common Stock, par 600,000 shares $23.835 $14,301,000 $1,156.95
value $.01 per share(3)
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933
(the "Securities Act"), this registration statement also registers an
indeterminate number of shares of the Registrant's common stock which may become
issuable pursuant to the anti-dilution provisions of the Registrant's
Independent Director Stock Compensation Plan (the "Plan).
(2) Calculated solely for the purpose of determining the registration
fee pursuant to Rule 457 under the Securities Act, based upon the average of the
high and low sales prices of the Registrant's common stock as reported by Nasdaq
on August 27, 2003.
(3) Includes preferred share purchase rights. Prior to the occurrence
of certain events, the preferred share purchase rights will not be evidenced
separately from the Registrant's common stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
2002.
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
3. Quarterly Report on Form 10-Q for the quarter ended June 30, 2003.
4. Current Report on Form 8-K for the event dated December 19, 2002.
5. Current Report on Form 8-K for the event dated April 30, 2003.
6. The description of the registrant's common stock contained in its
Registration Statement on Form 8-A together with any amendment or report filed
with the Securities and Exchange Commission for the purpose of updating this
description.
7. All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the respective date of
filing of such documents. Any statement contained in a document incorporated by
reference herein is modified or superseded for all purposes to the extent that a
statement contained in this Registration Statement or in any other subsequently
filed document which is incorporated by reference modifies or replaces such
statement.
Any reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed documents which also is incorporated
or deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or
I-1
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
("GCL") provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the GCL permits a corporation, by so providing in its
certificate of incorporation, to eliminate or limit director's liability to the
corporation and its shareholders for monetary damages arising out of certain
alleged breaches of their fiduciary duty. Section 102(b)(7) of the GCL provides
that no such limitation of liability may affect a director's liability with
respect to any of the following: (i) breaches of the director's duty of loyalty
to the corporation or its shareholders; (ii) acts or omissions not made in good
faith or which involve intentional misconduct of knowing violations of law;
(iii) liability for dividends paid or stock repurchased or redeemed in violation
of the GCL; or (iv) any transaction from which the director derived an improper
personal benefit. Section 102(b)(7) does not authorize any limitation on the
ability of the corporation or its shareholders to obtain injunction relief,
specific performance or other equitable relief against directors.
Article TENTH of the registrant's Certificate of Incorporation provides
that no director shall be personally liable to the registrant or any of its
stockholders for monetary damages for breach of fiduciary duty as a director
except to the extent such elimination or limitation is prohibited by the
Delaware General Corporation Law. In addition, Article NINTH of the registrant's
Certificate of Incorporation and Article XX of the By-Laws of the registrant
provide in substance that, to the fullest extent permitted by Delaware law, each
director and officer shall be indemnified by the registrant against reasonable
costs and expenses, including attorneys fees, and any liabilities which may be
incurred in connection with any action to which he may be made a party by reason
of having been a director or officer of the registrant. The indemnification
provided by the registrant's By-Laws is not deemed exclusive of or in any way to
limit any other rights which any person seeking indemnification may be entitled.
The registrant has also entered into certain agreements wherein it has
agreed, subject to certain limitations, to indemnify its officers and directors
for judgments, fines, assessments,
interest and other charges they may incur as a party, witness or other
participant in any threatened, pending or completed actions, suits or proceeding
by reason of their acting as an officer, director, employee or agent of the
registrant or any of its subsidiaries, provided that the indemnified party acted
in good faith in a manner such person believed to be in or not opposed to the
best interests of the registrant and, with respect to certain matters, had no
reasonable cause to believe that his conduct was unlawful. The agreements also
provide that upon a "change of control" of the registrant, as defined in the
agreements, the registrant will be required to designate and set aside certain
funds for possible future payments of the indemnified parties pursuant to the
agreements.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
5 Opinion of Blank Rome LLP
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Blank Rome LLP (included in
Exhibit 5)
24.1 Power of Attorney (included on the
Signature Page of this Registration
Statement)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Plainfield, state of Indiana, on the 2nd day of
September, 2003.
BRIGHTPOINT, INC.
By: /s/ ROBERT J. LAIKIN
----------------------------------------
Robert J. Laikin
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below authorizes each of Robert J.
Laikin and J. Mark Howell, or either of them acting individually, as his true
and lawful attorney-in-fact, each with full power of substitution, to sign the
Registration Statement on Form S-8 of Brightpoint, Inc. including any and all
pre-effective and post-effective amendments, in the name and on behalf of each
such person, individually and in each capacity stated below, and to file the
same, with exhibits thereto and other documents in connection therewith with the
Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ ROBERT J. LAIKIN
---------------------------- Chairman of the Board and Chief September 2, 2003
Robert J. Laikin Executive Officer
/s/ FRANK TERENCE
---------------------------- Chief Financial Officer and Treasurer September 2, 2003
Frank Terence (Principal Financial Officer)
/s/ LISA M. KELLEY
---------------------------- Senior Vice President, Corporate Controller September 2, 2003
Lisa M. Kelley and Chief Accounting Officer
/s/ CATHERINE M. DAILY
---------------------------- Director September 2, 2003
Catherine M. Daily
/s/ ELIZA HERMANN
---------------------------- Director September 2, 2003
Eliza Hermann
/s/ J. MARK HOWELL
---------------------------- President and Director September 2, 2003
J. Mark Howell
/s/ MARISA E. PRATT
---------------------------- Director September 2, 2003
Marisa E. Pratt
/s/ RICHARD W. ROEDEL
---------------------------- Director September 2, 2003
Richard W. Roedel
/s/ JERRE L. STEAD
---------------------------- Director September 2, 2003
Jerre L. Stead
/s/ STEPHEN H. SIMON
---------------------------- Director September 2, 2003
Stephen H. Simon
/s/ TODD H. STUART
---------------------------- Director September 2, 2003
Todd H. Stuart
/s/ ROBERT F. WAGNER
---------------------------- Director September 2, 2003
Robert F. Wagner
Exhibit Index
Exhibit No. Description
----------- -----------
5 Opinion of Blank Rome LLP
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Blank Rome LLP (included in Exhibit 5)
24.1 Power of Attorney (included on Signature Page of the
Registration Statement)