As filed with the Securities and Exchange Commission on September _, 2004.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRIGHTPOINT, INC.
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(Exact name of registrant as specified in its charter)
Indiana 35-1778566
-------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
501 Airtech Parkway, Plainfield, Indiana 46168
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(Address of principal executive offices) (Zip Code)
Brightpoint, Inc. 2004 Long-Term Incentive Plan
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(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
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(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 1,500,000 shares $13.51 $20,265,000 $2,567.58
value $.01 per share
Preferred Stock (3) (3) (3) (3)
Purchase Rights
(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 2004
Long-Term Incentive 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 September 1, 2004.
(3) The Registration Statement also covers rights to purchase shares of
a Series A Preferred Stock, no stated value, which are attached to and trade
with the Common Stock. No additional considerations will be received by
Registrant for the rights registered hereby.
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, 2003.
2. Quarterly Report on Form 10-Q for the quarter ended June 30,
2004.
3. Quarterly Report on Form 10-Q for the quarter ended March 31,
2004.
4. Current Report on Form 8-K for the event dated February 5,
2004.
5. Amendment to Annual Report on Form 10-K for the fiscal year
ended December 31, 2002.
6. Amendment to Quarterly Report on Form 10-Q for the quarter
ended September 30, 2003.
7. Current Report on Form 8-K for the event dated March 18, 2004.
8. Current Report on Form 8-K for the event dated April 12, 2004.
9. Certification of Termination of Registration on Form 15 dated
May 11, 2004.
10. Current Report on Form 8-K for the event dated June 3, 2004.
11. Current Report on Form 8-K for the event dated June 4, 2004.
12. 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.
13. 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 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.
The Indiana Business Corporation Law ("IBCL") provide that a
corporation may indemnify any individual made a party to a proceeding
(including a proceeding by or in the right of the corporation) because
the individual is or was a director, officer, employee or agent of the
corporation against liability incurred in the proceeding if the
individual acted in good faith and reasonably believed (i) in the case
of conduct in the individual's official capacity with the corporation,
that the individual's conduct was in the corporation's best interests
and (ii) in all other cases, that the individual's conduct was at least
not opposed to the corporation's best interests. In the case of any
criminal proceeding, the individual must have also had either
reasonable cause to believe the conduct was lawful or no reasonable
cause to believe that it was unlawful. In addition, Section 23-1-37-9
and Section 23-1-37-13 provide that a corporation, unless limited by
its articles of incorporation, must indemnity a director or officer who
was wholly successful in the defense of any proceeding to which the
director or officer was a party because the director or officer is or
was a director or officer of the corporation against reasonable
expenses incurred by the director or officer in connection with the
proceeding.
Section 23-1-35-1(e) of the IBCL provides that a director is not liable
for any action taken as a director, or any failure to act, unless the
director has breached or failed to perform the duties of the director's
office in compliance with Section 23-1-35-1 and the breach or failure
to perform constitutes willful misconduct or recklessness. Subject to
this standard, Section 23-1-35- 4 provides that a director who votes or
assents to distributions in violation of the IBCL or the articles of
incorporation is personally liable to the corporation for the amount of
the illegal distribution and is entitled to contribution from the other
directors who voted for or assented to such distribution and the
shareholders who received the distribution.
Article VI of the registrant's Articles of Incorporation outlines the
necessary factors for compliance with Section 23-1-35-1 of the IBCL. In
addition, Article VII of the registrant's Articles of Incorporation and
Article XX of the By-Laws of the registrant provide in substance that,
to the fullest extent permitted by Indiana 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.
The Registrant maintains directors' and officers' liability insurance,
the effect of which is to indemnify directors and officers of
Registrant and its subsidiaries against certain losses.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
5 Opinion of Baker & Daniels
23.1 Consent of Ernst & Young LLP
23.2 Consent of Baker & Daniels (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 day of September
2004.
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, 2004
----------------------------- Executive Officer
Robert J. Laikin
/s/ J. MARK HOWELL President September 2, 2004
-----------------------------
J. Mark Howell
/s/ FRANK TERENCE Chief Financial Officer and Treasurer September 2, 2004
----------------------------- (Principal Financial Officer)
Frank Terence
/s/ LISA M. KELLEY Senior Vice President, Corporate Controller September 2, 2004
----------------------------- and Chief Accounting Officer
Lisa M. Kelley
/s/ CATHERINE M. DALTON Director September 2, 2004
-----------------------------
Catherine M. Dalton
/s/ ELIZA HERMANN Director September 2, 2004
-----------------------------
Eliza Hermann
/s/ V. WILLIAM HUNT Director September 2, 2004
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V. William Hunt
/s/ MARISA E. PRATT Director September 2, 2004
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Marisa E. Pratt
/s/ RICHARD W. ROEDEL Director September 2, 2004
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Richard W. Roedel
/s/ JERRE L. STEAD Director September 2, 2004
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Jerre L. Stead
/s/ STEPHEN H. SIMON Director September 2, 2004
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Stephen H. Simon
/s/ ROBERT F. WAGNER Director September 2, 2004
-----------------------------
Robert F. Wagner
Exhibit Index
Exhibit No. Description
5 Opinion of Baker & Daniels
23.1 Consent of Ernst & Young LLP
23.2 Consent of Baker & Daniels (included in Exhibit 5)
24.1 Power of Attorney (included on Signature Page of the
Registration Statement)