BRIGHTPOINT, INC.
AMENDED 2004 LONG-TERM INCENTIVE PLAN
(as adjusted for 3 for 2 stock splits in September and
December 2005 and a 6 for 5 stock split in
May 2006 and as amended by vote of the shareholders on
July 31, 2007 and May 13, 2008)
The purpose of the
Brightpoint, Inc. 2004 Long-Term Incentive Plan is to enable
Brightpoint, Inc. to offer to those of its employees and to the
employees of its Subsidiaries and directors, consultants and other
persons who are expected to contribute to the success of the
Company and its Subsidiaries Awards under the Plan, thereby
enhancing the Company’s ability to attract, retain and reward
such key employees or other persons, and to increase the interest
of those employees or other persons in the welfare of the Company
and its Subsidiaries.
For purposes of
the Plan, unless the context requires otherwise, the following
terms shall be defined as set forth below:
(a) “Award”
means an award granted under the Plan in one of the forms provided
in Section 3.
(b) “Beneficiary”
as applied to a participant in the Plan, means a person or entity
(including a trust or the estate of the participant) designated in
writing by the participant on such forms as the Committee may
prescribe to receive benefits under the Plan in the event of the
death of the participant; provided, however, that if, at the death
of a participant, there shall not be any living person or entity in
existence so designated, the term “beneficiary” shall
mean the legal representative of the participant’s
estate.
(c) “Board”
means the Board of Directors of the Company.
(d) “Cash
Award” means an Award granted pursuant to
Section 11.
(e) “Cause”
has the meaning ascribed thereto in
Section 6(b)(ix).
(f) “Change
of Control” has the meaning ascribed thereto in
Section 13.
(g) “Code”
means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
(h) “Committee”
means the Compensation and Human Resources Committee of the Board
or any other committee of the Board which the Board may designate,
consisting of two or more members of the Board each of whom shall
meet the definition of an “independent director” under
the listing rules of any securities exchange or national securities
association on which the Stock is listed for trading and the
requirements set forth in any other law, rule or regulation
applicable to the Plan hereinafter enacted, provided, however, that
(i) with respect to any Award that is intended to satisfy the
requirements of Rule 16b-3, such Award shall be granted and
administered by a committee of the Board consisting of at least
such number of directors as are
required from
time to time by Rule 16b-3, and each such committee member
shall meet such qualifications as are required by Rule 16b-3
and (ii) with respect to any Award that is intended to satisfy
the requirements of Section 162(m) of the Code, such Award shall be
granted and administered by a committee of the Board consisting of
at least such number of directors as are required from time to time
by Section 162(m) of the Code, and each such committee member shall
meet such qualifications as are required by Section 162(m) of the
Code.
(i) “Company”
means Brightpoint, Inc., a corporation organized under the laws of
the State of Delaware or any successor entity.
(j) “Covered
Employee” shall mean any employee of the Corporation or any
of its Subsidiaries who is deemed to be a “covered
employee” within the meaning of Section 162(m) of the
Code.
(k) “Deferred
Stock” means Stock to be received, under an Award made
pursuant to Section 9, at the end of a specified deferral
period.
(l) “Disability”
“Disability” of a participant in the Plan shall mean
the permanent and total disability as defined by
Section 22(e)(3) of the Code.
(m) “Early
Retirement” means retirement, with the approval of the
Committee for purposes of one or more Award(s) hereunder, from
active employment with the Company or any Parent or Subsidiary
prior to age 65.
(n) “Elective
Deferral” has the meaning ascribed thereto in
Section 19.
(o) “Employee”
means any common law employee of the Company, any Parent or any
Subsidiary (as defined in accordance with the Regulations and
Revenue Rulings then applicable under Section 3401(c) of the Code),
including any employee who is also a director and/or officer of
such.
(p) “Exchange
Act” means the Securities Exchange Act of 1934, as amended,
as in effect from time to time.
(q) “Fair
Market Value”, unless otherwise required by any applicable
provision of the Code or any regulations issued thereunder, means,
as of any given date: (i) if the principal market for the
Stock is a national securities exchange or the National Association
of Securities Dealers Automated Quotations System (“NASDAQ),
the closing sales price of the Stock on such day as reported by
such exchange or market system, or on a consolidated tape
reflecting transactions on such exchange or market system, or
(ii) if the principal market for the Stock is not a national
securities exchange and the Stock is not quoted on NASDAQ, the mean
between the highest bid and lowest asked prices for the Stock on
such day as reported by NASDAQ or the National Quotation Bureau,
Inc.; provided that if clauses (i) and (ii) of this
paragraph are both inapplicable, or if no trades have been made or
no quotes are available for such day, the Fair Market Value of the
Stock shall be determined in good faith by the Board or the
Committee, as the case may be, which determination shall be
conclusive as to the Fair Market Value of the Stock. In no event
shall “Fair Market Value” be less than the par value of
the Stock.
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(r) “Non-Qualified
Stock Option” means any Stock Option that is not an incentive
stock option within the meaning of Section 422 of the
Code.
(s) “Normal
Retirement” means retirement from active employment with the
Company or any Parent or Subsidiary on or after age 65.
(t) “Other
Stock-Based Award” means an award under Section 10 that
is valued in whole or in part by reference to, or is otherwise
based upon, Stock.
(u) “Parent”
means any present or future parent of the Company, as such term is
defined in Section 424(e) of the Code, or any successor
thereto.
(v) “Performance
Cycle” means the period of time established by the Committee
within which the Performance Goals are required to be attained or
satisfied.
(w) “Performance
Goals” means the performance goals established by the
Committee with respect to the Company or any Subsidiary, in the
Committee’s sole discretion in writing, based upon any one or
any combination of the following business criteria or such other
business criteria as the Committee shall determine: (i) return
on equity, (ii) operating income, (iii) earnings and (iv)
return on invested capital.
(x) “Performance
Unit” means a contingent right granted pursuant to
Section 7 to receive an award, payable either in cash and/or
in Stock, if the Performance Goals established by the Committee are
attained.
(y) “Plan”
means this Brightpoint, Inc. 2004 Long-Term Incentive Plan, as
hereinafter amended from time to time.
(z) “Restricted
Stock” means Stock, received under an award made pursuant to
Section 8, that is subject to restrictions under said
Section 8.
(aa) “Restricted
Stock Agreement” shall have the meaning set forth in
Section 8(b)(iv).
(bb) “Retirement”
means Normal Retirement or Early Retirement.
(cc) “Rule 16b-3”
means Rule 16b-3 of the General Rules and Regulations under
the Exchange Act, as in effect from time to time.
(dd) “Securities
Act” means the Securities Act of 1933, as amended, as in
effect from time to time.
(ee) “Stock”
means the common stock of the Company, par value $.01 per share,
which the Company is currently authorized to issue or may in the
future be authorized to issue or, in the event that the outstanding
shares of such common stock are hereinafter converted into or
exchanged for shares of a different stock or security of the
Company or another corporation pursuant to the terms of this Plan,
such other stock or security.
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(ff) “Stock
Option” or “Option” means any option to purchase
shares of Stock which is granted pursuant to the Plan.
(gg) “Stock
Option Agreement” has the meaning set forth in
Section 6(b)(xi).
(hh) “Subsidiary”
means any present or future subsidiary corporation of the Company,
as such term is defined in Section 424(f) of the Code, or any
successor thereto.
(ii) “Termination
of Service” occurs when a participant of the Plan who is an
Employee shall cease to serve as an Employee for any reason; or,
when a participant in the Plan who is a non-employee director shall
cease to serve as a director of the Company, any Parent and any
Subsidiary for any reason. Except as may be necessary or desirable
to comply with applicable federal or state law, a
“Termination of Service” shall not be deemed to have
occurred when a participant in the Plan changes his or her status
as an Employee or non-employee director so long as after such
change in status, the participant is either an employee or
non-employee director.
SECTION 3:
ADMINISTRATION; TYPES OF AWARDS; DELEGATION OF AUTHORITY BY THE
COMMITTEE.
The Plan shall be
administered by the Committee.
The Committee
shall have the authority to grant, pursuant to the terms of the
Plan, to officers and other key employees or other persons eligible
under Section 5 the following type of Awards: (a) Stock
Options, in accordance with Section 6, (b) Performance
Units in accordance with Section 7, (c) Restricted Stock,
in accordance with Section 8, (d) Deferred Stock, in
accordance with Section 9, (e) Other Stock-Based Awards,
in accordance with Section 10 and/or (f) Cash Awards in
accordance with Section 11.
For purposes of
illustration and not of limitation, the Committee shall have the
authority (subject to the express provisions of this
Plan):
(i) to
select the officers, other employees of the Company or any Parent
or Subsidiary and other persons to whom Awards may be from time to
time granted hereunder:
(ii) to
determine the Non-Qualified Stock Options, Performance Units,
Restricted Stock, Deferred Stock and/or Other Stock-Based Awards
and/or Cash Awards, or any combination thereof, if any, to be
granted hereunder to one or more eligible Employees and other
persons to whom Awards may be from time to time granted
hereunder;
(iii) to
determine the number of shares of Stock and/or the amount of any
cash to be covered by each Award granted hereunder;
(iv) to
determine the terms and conditions, not inconsistent with the terms
of the Plan, of any Award granted hereunder (including, but not
limited to, share price, any restrictions or limitations, and any
vesting, acceleration or forfeiture provisions);
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(v) to
determine the terms and conditions under which Awards granted
hereunder are to operate on a tandem basis and/or in conjunction
with or apart from other awards made by the Company or any Parent
or Subsidiary outside of this Plan;
(vi) to
determine the extent and circumstances under which Stock and other
amounts payable with respect to an Award hereunder shall be
deferred; and
(vii) to
substitute (A) new Stock Options for previously granted Stock
Options, including previously granted Stock Options having less
favorable terms, provided, however, that without stockholder
approval, no such substitution shall result in the reduction of the
exercise price of a previously granted Stock Option, and
(B) new awards of any other type for previously granted awards
of the same type, including previously granted awards which contain
less favorable terms, provided that the exercise price of any new
Stock-based Award may not be reduced without stockholder
approval.
Subject to
Section 14 hereof, the Committee shall have the authority to
adopt, alter and repeal such administrative rules, guidelines and
practices governing the Plan as it shall, from time to time, deem
advisable, to interpret the terms and provisions of the Plan and
any Award issued under the Plan (and to determine the form and
substance of all agreements relating thereto), and otherwise to
supervise the administration of the Plan.
Subject to the
express provisions of the Plan, all decisions made by the Committee
pursuant to the provisions of the Plan shall be made in the
Committee’s sole discretion and shall be final and binding
upon all persons, including the Company, its Parent and
Subsidiaries and the Plan participants.
Subject to the
provisions of the Plan and notwithstanding anything to the contrary
above, the Committee may, in its sole discretion, from time to time
delegate to the Chief Executive Officer of the Company (the
“CEO”) the authority, subject to such terms as the
Committee shall determine, to determine and designate from time to
time the eligible persons to whom Awards may be granted and to
perform other specified functions under the Plan; provided,
however, that the CEO may not grant any Award to, or perform any
function related to an Award to, himself or any individual
(i) then subject to Section 16 of the Exchange Act or
(ii) who is or, in the determination of the Board or the
Committee, may become a Covered Employee, and any such grant or
function relating to such individuals shall be performed solely by
the Committee to ensure compliance with the applicable requirements
of the Exchange Act and the Code or (iii) where the grant or
performance of such function by the CEO will cause the Plan not to
comply with any applicable regulation of any securities exchange or
automated quotation system where the Stock is listed for
trading.
Any such
delegation of authority by the Committee shall be by a resolution
adopted by the Committee and shall specify all of the terms and
conditions of the delegation. The resolution of the Committee
granting such authority may authorize the CEO to grant Awards
pursuant to the Plan and may set forth the types of Awards that may
be granted; provided, however, that the resolution shall
(i) specify the maximum number of shares of Stock that may be
awarded to any individual Plan participant and to all participants
during a specified period of time, (ii) specify the maximum
amount of any Cash Award and any conditions, limitations, or
restrictions to be
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imposed on Cash
Awards, and (iii) specify the exercise price (or the method
for determining the exercise price) of an Award, the vesting
schedule, and any other terms, conditions, or restrictions that may
be imposed by the Committee in its sole discretion. The resolution
of the Committee shall also require the CEO to provide the
Committee, on at least a quarterly basis, a report that identifies
the Awards granted and, with respect to each Award: the name of the
participant, the date of grant of the Award, the number of shares
of Stock subject to discretion as set forth in the resolutions of
the Committee granting such authority.
The Committee may
also delegate to other officers of the Company, pursuant to a
written delegation, the authority to perform specified functions
under the Plan that are not inconsistent with Rule 16b-3 or
other rules or regulations applicable to the Plan. Any actions
taken by any officers of the Company pursuant to such written
delegation of authority shall be deemed to have been taken by the
Committee.
SECTION 4:
STOCK SUBJECT TO PLAN.
The total number
of shares of Stock reserved and available for distribution under
the Plan shall be 6,223,953 shares. Such shares may consist, in
whole or in part, of authorized and unissued shares or treasury
shares.
If any shares of
Stock that have been optioned cease to be subject to a Stock Option
for any reason, or if any shares of Stock that are subject to any
Restricted Stock Award, Deferred Stock Award, Performance Unit or
Other Stock-Based Award are forfeited or any such Award otherwise
terminates without the issuance of such shares, such shares shall
again be available for distribution under the Plan.
Officers and other
employees of the Company or any Parent or Subsidiary (but excluding
any person whose eligibility would adversely affect the compliance
of the Plan with the requirements of Rule 16b-3) who are at
the time of the grant of an Award under the Plan employed by the
Company or any Parent or Subsidiary and who are responsible for or
contribute to the management, growth and/or profitability of the
business of the Company or any Parent or Subsidiary, are eligible
to be granted Awards under the Plan. In addition, Awards may be
granted under the Plan to any person, including, but not limited
to, directors independent agents, consultants and attorneys who the
Committee believes has contributed or will contribute to the
success of the Company. Eligibility under the Plan shall be
determined by the Committee.
SECTION 6:
STOCK OPTIONS.
(a) Grant and
Exercise. Stock Options granted under the Plan shall be
Non-Qualified Stock Options. Any Stock Option granted under the
Plan shall contain such terms as the Committee may be, may from
time to time approve. The Committee shall have the authority to
grant to any optionee Non-Qualified Stock Options, and they may be
granted alone or in addition to other Awards granted under the
Plan. The grant of an Option shall be deemed to have occurred on
the date on which the Committee by resolution, designates an
individual as a grantee
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thereof, and
determines the number of shares of Stock subject to, and the terms
and conditions of, said Option.
(b) Terms and
Conditions. Stock Options granted under the Plan shall be subject
to the following terms and conditions:
(i) Option
Price. The option price per share of Stock purchasable under a
Stock Option shall be determined by the Committee, at the time of
grant but shall be not less than 100% of the Fair Market Value of
the Stock at the time of grant.
(ii) Option
Term. The term of each Stock Option shall be fixed by the
Committee.
(iii) Exercisability.
Stock Options shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined by the
Committee at the time of grant. If the Committee provides that any
Stock Option is exercisable only in installments, the Committee may
waive such installment exercise provisions at any time at or after
the time of grant in whole or in part.
(iv) Method
of Exercise. Subject to whatever installment, exercise and waiting
period provisions are applicable in a particular case, Stock
Options may be exercised in whole or in part at any time during the
option period by giving written notice of exercise to the Company
specifying the number of shares of Stock to be purchased. Such
notice shall be accompanied by payment in full of the purchase
price, which shall be in cash or, unless otherwise provided in the
Stock Option Agreement, in whole shares of Stock which are already
owned by the holder of the Option or, unless otherwise provided in
the Stock Option Agreement, partly in cash and partly in such
Stock. Cash payments shall be made by wire transfer, certified or
bank check or personal check, in each case payable to the order of
the Company; provided, however, that the Company shall not be
required to deliver certificates for shares of Stock with respect
to which an Option is exercised until the Company has confirmed the
receipt of good and available funds in payment of the purchase
price thereof. Payments in the form of Stock (which shall be valued
at the Fair Market Value of a share of Stock on the date of
exercise) shall be made by delivery of stock certificates in
negotiable form which are effective to transfer good and valid
title thereto to the Company, free of any liens or encumbrances. In
addition, payment may be made by delivery by the holder to the
Company of an executed irrevocable option exercise form together
with irrevocable instructions from the holder to a broker or
dealer, reasonably acceptable to the Company, to sell certain of
the shares of Stock purchased upon exercise of the Option with or
to pledge such shares as collateral for a loan and promptly deliver
to the Company the amount of the sale and/or loan proceeds
necessary to pay such purchase price, and/or in any other form of
valid consideration that is acceptable to the Committee in its sole
discretion. Except as otherwise expressly provided in the Plan or
the Stock Option Agreement or unless waived by the Committee at or
after the time of grant, no Option granted to an Employee may be
exercised at any time unless the holder thereof is then an
Employee. The holder of an Option shall have none of the rights of
a stockholder with respect to the shares subject to the Option
until the optionee has given written notice of exercise, has paid
in full for those shares of Stock and, if requested by the
Committee has given the representation described in Section 20(a)
below.
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(v) Transferability;
Exercisability. Unless otherwise set forth in the Stock Option
Agreement (or unless waived by the Committee at or after the time
of grant), no Option shall be transferable by the optionee other
than by will or by the laws of descent and distribution, and all
Options shall be exercisable, during the optionee’s lifetime,
only by the optionee or his or her guardian or legal
representative.
(vi) Termination
by Reason of Death. If an optionee’s Termination of Service
occurs by reason of death, any Stock Option held by such optionee
may thereafter be exercised by the executor or administrator of the
estate of the optionee or the optionee’s legal
representative, to the extent it was exercisable at the time of the
optionee’s Termination of Service or on such accelerated
basis as the Committee may determine at or after the time of grant.
Such Option may be exercised for a period of time as set forth in
the Stock Option Agreement or as the Committee may determine (at or
after the date of grant (in either case, not to exceed one year
from Termination of Service) or as until the expiration of the
stated term of such Stock Option, whichever period is the
shorter.
(vii) Termination
by Reason of Disability. If an optionee’s Termination of
Service occurs by reason of Disability, any Stock Option held by
such optionee may thereafter be exercised by the optionee or his
legal representative, to the extent it was exercisable at the time
of the optionee’s Termination of Service or on such
accelerated basis as the Committee may determine at or after the
time of grant. Such Option may be exercised for a period of time as
set forth in the Stock Option Agreement or as the Committee may
determine at or after the time of grant (in either case, not to
exceed one year from Termination of Service) or until the
expiration of the stated term of such Stock Option, whichever
period is the shorter; provided, however, that if the optionee dies
within such specified period any unexercised Stock Option held by
such optionee shall thereafter be exercisable to the extent to
which it was exercisable at the time of death for a period of time
from the date of death (not to exceed one year) as determined by
the Committee or until the expiration of the stated term of such
Stock Option, whichever period is the shorter.
(viii) Termination
by Reason of Retirement. If an optionee’s Termination of
Service occurs by reason of Normal Retirement, any Stock Option
held by such optionee may thereafter be exercised by the optionee,
to the extent it was exercisable at the time of Termination of
Service or on such accelerated basis as the Committee may determine
at or after the time of grant, for a period of time set forth in
the Stock Option Agreement or such other period as the Committee
may specify at or after the time of grant (in either case, not to
exceed one year from the Termination of Service) or the expiration
of the stated term of such Stock Option, whichever period is the
shorter; provided, however, that if the optionee dies within such
specified period any unexercised Stock Option held by such optionee
shall thereafter be exercisable to the extent to which it was
exercisable at the time of death for a period of (not to exceed one
year) from the date of death as determined by the Committee or
until the expiration of the stated term of such Stock Option,
whichever period is the shorter. If an optionee’s Termination
of Service occurs by reason of Early Retirement, the Stock Option
shall thereupon terminate; provided, however, that if the Committee
so approves at the time of Early Retirement, any Stock Option held
by the optionee may thereafter be exercised by the optionee as
provided above in connection with termination of employment by
reason of Normal Retirement.
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(ix) Other
Termination. Subject to the provisions of Section 20(g) below and
unless otherwise determined by the Committee at or after the time
of grant or otherwise set forth in the Stock Option Agreement, if a
holder’s Termination of Service occurs for any reason other
than death, Disability or Retirement or the voluntary resignation
of the holder, the Stock Option shall thereupon automatically
terminate, except that (a)&nb
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