As filed with the Securities and Exchange Commission on June _, 2004.
Registration No. 333-87863
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
TO
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
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(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
501 Airtech Parkway, Plainfield, Indiana 46168
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(Address of principal executive offices) (Zip Code)
1994 Stock Option Plan, As Amended; 1996 Stock Option Plan,
As Amended; Non-Employee Director Stock Option Plan;
1999 Brightpoint, Inc. Employee Stock Purchase Plan
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(Full title of the plans)
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
EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to that certain Registration
Statement on Form S-8 (File No. 333-87863) (the "Registration Statement") filed
by Brightpoint, Inc., a Delaware corporation ("Brightpoint Delaware"), is being
filed by Brightpoint, Inc., an Indiana Corporation, which is the successor to
Brightpoint Delaware following a reincorporation merger. Because there are no
additional shares being registered, and the registration fee was paid upon the
filing of the Registration Statement, no further registration fee is required.
On June 3, 2004, Brightpoint Delaware merged (the "Merger") into
Brightpoint Indiana Corp. ("Brightpoint Indiana"), an Indiana Corporation and a
wholly-owned subsidiary of Brightpoint Delaware. Pursuant to the terms of the
merger agreement, Brightpoint Indiana changed its name to Brightpoint, Inc. (the
"Company").
Pursuant to Rule 414(d) promulgated under the Securities Act of 1933
(the "Act"), the Company hereby adopts the Registration Statement as its own
registration statement for all purposes of the Act and the Securities Exchange
Act of 1934 ("Exchange Act"). Moreover, the Company hereby amends and restates
the following items of the Registration Statement for the purpose of reflecting
material changes resulting from and after the Merger.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Brightpoint Delaware, the predecessor
to the Registrant, or 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 March 31, 2004.
3. Current Report on Form 8-K for the event dated February 5, 2004.
4. Amendment to Annual Report on Form 10-K for the fiscal year ended
December 31, 2002.
5. Amendment to Quarterly Report on Form 10-Q for the quarter ended
September 30, 2003.
6. Current Report on Form 8-K for the event dated March 18, 2004.
7. Current Report on Form 8-K for the event dated April 12, 2004.
8. Certification of Termination of Registration on Form 15 dated
May 11, 2004.
9. Current Report on Form 8-K for the event dated June 3, 2004.
10. Current Report on Form 8-K for the event dated June 4, 2004.
11. The description of the registrant's common stock contained in its
Registration Statement on Form 8-A declared effective April 17, 1994 and March
28, 1997, together with any amendment or report filed with the Commission for
the purpose of updating this description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 6. Indemnification of Directors and Officers.
Section 23-1-37-8 and Section 23-1-37-13 of 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 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, 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 stockholders
who received the distribution.
Article VI of the registrant's Restated 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 Restated Articles of
Incorporation and Article XX of the Amended and Restated 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 Amended and Restated 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 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the Prospectus any facts or events
arising after the effective date of the prospectus (or the most recent
post-effective amendments thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission (the "Commission") pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
prices represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be filed with a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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
Post-Effective Amendment No. 2 to Registration Statement No. (333-87863) on Form
S-8 of Brightpoint, Inc. to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Plainfield, state of Indiana, on the
day of June, 2004.
BRIGHTPOINT, INC.
By: /s/ Robert J. Laikin
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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 this
Post-Effective Amendment No. 2 to Registration Statement No. (333-87863) on Form
S-8 of Brightpoint, Inc. including any and all future 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
Post-Effective Amendment No. 2 to Registration Statement No. (333-87863) on Form
S-8 of Brightpoint, Inc. has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ Robert J. Laikin Chairman of the Board and Chief Executive June 25, 2004
--------------------------- Officer
Robert J. Laikin
/s/ J. Mark Howell President June 25, 2004
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J. Mark Howell
/s/ Frank Terence Chief Financial Officer and Treasurer June 25, 2004
--------------------------- Principal Financial Officer)
Frank Terence
/s/ Lisa M. Kelley Senior Vice President, Corporate Controller June 25, 2004
--------------------------- and Chief Accounting Officer
Lisa M. Kelley
/s/ Catherine M. Dalton Director June 25, 2004
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Catherine M. Dalton
Director June , 2004
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Eliza Hermann
/s/ V. William Hunt Director June 25, 2004
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V. William Hunt
/s/ Marisa E. Pratt Director June 25, 2004
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Marisa E. Pratt
/s/ Richard W. Roedel Director June 25, 2004
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Richard W. Roedel
/s/ Jerre L. Stead Director June 25, 2004
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Jerre L. Stead
/s/ Stephen H. Simon Director June 25, 2004
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Stephen H. Simon
/s/ Robert F. Wagner Director June 25, 2004
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Robert F. Wagner
Exhibit Index
Exhibit No. Description
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4.1 (1) Restated Articles of Incorporation of the Registrant
4.2 (1) Amended and Restated By-Laws of the Registrant
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 this Post-
Effective Amendment No. 1 to the Registration Statement)
(1) Filed as an Exhibit to the Registrant's Current Report on Form 8-K for the
event dated June 3, 2004.