BRIGHTPOINT, INC.
AMENDED AND RESTATED 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, May 13, 2008
and May 5, 2009)
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” shall have the meanings set forth in
Section 13A and Section 13B, as applicable.
(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 arithmetic mean of the high and low prices on the
trading day of the grant of the Stock 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.
(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) “Section 13B
Effective Date” means the date the Company’s
shareholders approve the Amended and Restated 2004 Incentive Plan
implementing Section 13B of the Plan.
(ee) “Securities
Act” means the Securities Act of 1933, as amended, as in
effect from time to time.
(ff) “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.
(gg) “Stock
Option” or “Option” means any option to purchase
shares of Stock which is granted pursuant to the Plan.
(hh) “Stock
Option Agreement” has the meaning set forth in
Section 6(b)(xi).
(ii) “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.
(jj) “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);
(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 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 13,223,953 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
key 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, 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 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, on the date of
grant but shall be not less than 100% of the Fair Market Value of
the Stock on the date 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.
(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.
(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) if the Termination of Service
occurs as a result of the holder’s voluntary resignation,
such Stock Option may be exercised to the extent it was exercisable
at the time of Termination of Service for a period of thirty
(30) days or the expiration of the stated term of the Stock
Option, whichever is shorter, and (b) if the optionee is
involuntarily terminated by the Company or a Subsidiary or Parent
without Cause (as hereinafter defined), such Stock Option may be
exercised to the extent it was exercisable at the date of
Termination of Service for six months (or such other period set
forth in the Stock Option Agreement which period shall not exceed
one year from the date of such Termination of Service) or until the
expiration of the stated term of such Stock Option, whichever
period is the shorter. For purposes of the Plan,
“Cause” shall mean (A) the conviction of the
optionee of a felony under Federal law or the law of the state in
which such action occurred, (B) dishonesty by the optionee in
the course of fulfilling his or her employment duties, or
(C) the willful and deliberate failure on the part of the
optionee to perform his or her employment duties in any material
respect. Notwithstanding the foregoing, if the optionee has an
employment agreement with the Company or a Subsidiary or Parent,
the definition of “Cause” shall have the meaning
ascribed in such employment agreement.
(x) Alternative
Settlement of Option. Upon the receipt of written notice of
exercise, the Committee, may elect to settle all or part of any
Stock Option by paying to the optionee an amount, in cash and/or
Stock (valued at Fair Market Value on the date of
exercise),
equal to the
product of the excess of the Fair Market Value of one share of
Stock on the date of exercise over the Option exercise price,
multiplied by the number of shares of Stock with respect to which
the optionee proposes to exercise the Option. Any such settlements
which relate to Options which are held by optionees who are subject
to Section 16(b) of the Exchange Act shall comply with any existing
provisions of Rule 16b-3, to the extent applicable.
(xi) Stock
Option Agreement. Each grant of a Stock Option shall be confirmed
by, and shall be subject to the terms of, an agreement executed by
the Company and the participant.
SECTION 7:
PERFORMANCE UNITS.
Awards granted as
Performance Units shall be subject to the following
provisions:
(a) The
Performance Cycle for the attainment of the Performance Goals shall
be determined by the Committee. The Committee may establish more
than one cycle for any particular Performance Unit.
(b) The
Committee shall establish a dollar value for each Performance Unit,
the Performance Goals to be attained in respect of the Performance
Unit, the various percentages of the Performance Unit value to be
paid out upon the attainment, in whole or in part, of the
Performance Goals and such other Performance Unit terms, conditions
and restrictions as the Committee deems appropriate. Any
Performance Goal may be modified by the Committee during the course
of a Performance Cycle to take into account changes in conditions
that occur. Notwithstanding the foregoing, in the case of a
Performance Unit granted to a Covered Employee, no business
criteria other than those enumerated in Section 2(w) may be used in
establishing the Performance Goals for such Performance Unit, and
no such Performance Goals may be modified by the Committee during
the course of a Performance Cycle except in accordance with Section
162(m) of the Code. As soon as practicable after the termination of
the Performance Cycle, the Committee shall determine what, if any,
payment is due on the Performance Unit in accordance with the terms
thereof.
(c) In the
event of a participant’s Termination of Service prior to the
expiration of the Performance Cycle established for any Performance
Unit he or she may have been awarded, the Committee may, in its
sole discretion provide for a full or partial credit and determine
what percentage, if any, of the Performance Unit is to be paid out.
However, no unpaid portion of a Performance Unit otherwise payable
shall be paid to a Plan participant whose Termination of Service is
for Cause. Notwithstanding the foregoing, in the case of
Performance Units granted to Covered Employees, this paragraph
7.5(c) shall not be given effect if, as a result thereof, such
Performance Units shall lose the protection afforded by Section
162(m) of the Code.
(d) Payment
of Performance Units shall be made, at the sole discretion of the
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