EX-10.6
EMPLOYMENT AGREEMENT
This AGREEMENT is made on the 23rd of February 2006 between BRIGHTPOINT ASIA
LIMITED (the "Employer" or the "Company"), and XXXX XXXXXXXXX DU PLESSIS XXXXXX
(the "Employee").
RECITALS
The Employer has agreed to employ the Employee as President of the Brightpoint
Emerging Markets Division and shall have the title of the President - Emerging
Markets and as on the terms and conditions set out in this Agreement.
1. TERM
The employment of the Employee will commence on 1st January 2006 and will
continue until 1st January 2009 (the "Initial Term"). This agreement will
automatically renew after the Initial Term for a one (1) year period unless
terminated in accordance with clause 6 of this Agreement.
2. TITLE AND DUTIES
a. During the term of this Agreement, the Employee will hold the title of
President - Emerging Markets or any such other title as may be assigned to
him from time to time by the Chief Executive Officer ("CEO") of
Brightpoint, Inc. ("Brightpoint") or the President of Brightpoint
("President"). The Employee agrees to carry out such reasonable duties and
responsibilities as are assigned to him from time to time by the CEO or
President. The Employee will report directly to the CEO, or at the CEO's
direction, the President. Any duties and responsibilities assigned to the
Employee from time to time must be reasonably related or consistent with
his position and status as President of Brightpoint Emerging Markets
Division.
b. The Employee agrees to devote all of his business time, attention,
knowledge and skills faithfully, diligently and to the best of his ability,
in furtherance of the business and activities of the Company. The Employee
will perform his duties in Dubai or such other locations as determined from
time to time by the CEO or the President. It is anticipated that
approximately 50% of Employee's time will be spent in Dubai and up to 50%
in various other international markets, including, without limitation,
India, the United States and Europe. The Employee agrees to travel to
various locations in connection with the business of the Company as and
when directed by the CEO or the President. The Employee acknowledges and
agrees that a significant amount of international travel is required to
carry out his duties under this Agreement.
specified in clauses 6.1, 6.2, 6.3 and 6.4, by providing 90 days' notice in
writing. The Company may also terminate this Agreement under this clause by
providing a payment of 90 days' remuneration in lieu of notice. In the event
that termination occurs pursuant to this clause the Company agrees to pay the
Employee by way of termination payment an amount equal to the Employee's
statutory entitlements accrued up until the date of termination together with an
amount equal to the Employee's total emoluments for the 12-month period ending
on the date of termination.
7. NOTICE OF TERMINATION
Any termination of the Employee's employment by the Employer or by the Employee
(other than termination by reason of the Employee's death) must be communicated
by written notice of termination to the other party of this Agreement.
8. COMPENSATION UPON TERMINATION
a. If the Employee's employment is terminated by reason of his death, the
Employer will pay to such person as he may designate in writing filed with
the Employer, or if no such person is designated, to his estate as a lump
sum benefit, his full Salary to the date of his death in addition to
statutory entitlements.
b. During any period that the Employee fails to perform his duties as a result
of incapacity due to physical or mental illness, the Employee will, on
production of medical reports satisfactory to the Company, continue to
receive his Salary until the Employee's employment is terminated pursuant
to clause 6.2 of this Agreement and for one month thereafter.
c. If the Employee's employment shall be terminated for Cause, the Employer
shall pay the Employee his full Salary through the Date of Termination, at
the rate in effect at the time Notice of Termination is given together with
the Employees statutory entitlements, and the Employer shall, assuming the
Employer is in compliance with the provisions of this Agreement, have no
further obligations with respect to this Agreement.
d. Upon a Change in Control, if in breach of this Agreement, the Employer
shall terminate the Employee's employment, other than pursuant to Sections
6.1, 6.2, 6.3 or 6.4 hereof, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any
further payments pursuant to Section 3 of this Agreement), Severance
Pay (as hereinafter defined), payable on the tenth day following the
Date of Termination, as follows:
a lump sum amount equal to (A) Salary received or earned by the Employee
from the Employer during the twelve months prior to the Termination Date,
multiplied by (B) three (3) ("Severance Pay"). Provided however, in no
event shall the amount payable under this Section 8(d) exceed US $1,000,000
but provided that this maximum amount shall not include statutory
entitlements.
e. Change of Control. For purposes of this Agreement, a "Change of Control"
shall be deemed to occur, unless previously consented to in writing by the
Employee, upon (a) individuals who, as of the date hereof, constitute the
Board of Directors of Brightpoint (the "Incumbent Board") ceasing for any
reason to constitute at least a majority of the Board of Directors of the
Employer (the "Board"); provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Brightpoint's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs in connection with a Combination, as defined
below, or as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) or
other actual or threatened solicitation of proxies or consents by or on
behalf of a person other than the Board; (b) the acquisition of beneficial
ownership (as determined pursuant to Rule 13d-3 promulgated under the
Exchange Act) of 15% or more of the voting securities of Brightpoint by any
person, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act) not affiliated with the Employee or Brightpoint;
provided, however, that no Change of Control shall be deemed to have
occurred for purposes of this Agreement if such person, entity or group
acquires beneficial ownership of 15% or more of the voting securities of
Brightpoint (i) as a result of a combination of Brightpoint or a
wholly-owned subsidiary of Brightpoint with such person, entity or group or
another entity owned or controlled by such person, entity or group (whether
effected by a merger, consolidation, sale of assets or exchange of stock or
otherwise) (a "Combination") and (ii) (x) executive officers of Brightpoint
(as designated by the Board for
purposes of Section 16 of the Exchange Act) immediately prior to the
Combination constitute not less than 50% of the executive officers of
Brightpoint for a period of not less than six (6) months after the
Combination (for purposes of calculating the executive officers of
Brightpoint after the Combination, those executive officers who are
terminated by Brightpoint for Cause or who terminate their employment
without Good Reason shall be excluded from the calculation entirely), and
(y) the members of the Incumbent Board immediately prior to the Combination
constitute not less than 50% of the membership of the Board after the
Combination and (z) after the Combination, more than 35% of the voting
securities of Brightpoint is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners of the outstanding voting securities of
Brightpoint immediately prior to the Combination, it being understood that
while the existence of a Change in Control pursuant to this Section
6.4.2(b) may not be ascertainable for six (6) months after the Combination,
if it is ultimately determined that such Combination constituted a Change
in Control, the date of the Change of Control shall be the effective date
of the Combination; (c) the commencement of a proxy contest against the
management for the election of a majority of the Board of Brightpoint if
the group conducting the proxy contest owns, has or gains the power to vote
at least 15% of the voting securities of Brightpoint; (d) the consummation
of a reorganization, merger or consolidation, or the sale, transfer or
conveyance of all or substantially all of the assets of Brightpoint to any
person or entity not affiliated with the Employee or Brightpoint unless,
following such reorganization, merger, consolidation, sale, transfer or
conveyance, the conditions set forth in clause (b)(ii) above are present;
or (e) the complete liquidation or dissolution of Brightpoint.
f. The Employee shall as a condition to receiving any amounts under Section 8
(d), provide the Employer with an acceptable form of release agreement,
whereby the Employer is released from its obligations hereunder.
9. CONFIDENTIALITY
a. The Employee must not, either during the continuance of his employment
under this Agreement (except in the proper course of his duties) or
thereafter, divulge to any person or use for any purpose other than those
of the Company, and must use his best endeavors to prevent the disclosure
of, any trade secret, industrial process or any information concerning the
business or finances of the Company or of any of the dealings, transactions
or affairs which may come to his knowledge during or in the course of his
employment, other than information which is freely available to the public,
and except to the extent that the Employee is required to disclose that
information by law.
b. The Employee acknowledges, that having regard to his duties with the
Company, that the Employee has or will become possessed of secret and
confidential knowledge and information relating to the trade secrets,
industrial process and other information concerning the business or
finances of the Company and that disclosure of such knowledge and
information could materially harm the Company and therefore agrees that the
restrictive covenants contained in this clause 9 are reasonable and
necessary for the protection of the goodwill of the Company.
c. Nothing in this clause is to be taken as limiting the Employee's duty to
the Company.
10. RESTRAINTS
a. The Executive hereby agrees that he shall not, during the period of his
employment hereunder and for a period of one (1) year following such
employment, directly or indirectly, within any territory in which the
Executive performed his duties under this Agreement, including, without
limitation, Dubai, Europe, Russia, Africa or the United States engage, have
an interest in or render any services to any business (whether as owner,
manager, operator, licensor, licensee, lender, partner, stockholder, joint
venturer, employee, consultant or otherwise) competitive with the business
activities of the Employer and its affiliates (the "Group") as are carried
on by the Group at the date or during the term of this Agreement.
b. The Executive hereby agrees that he shall not, during the period of his
employment and for a period of one (1) year following such employment,
directly or indirectly, take any action which constitutes an interference
with or a disruption of any of the Group's business activities including,
without limitation, solicitation of the Group's customers, or persons
listed on the personnel lists of the Group. At no time during the term of
this Agreement or thereafter shall the Executive, directly or indirectly,
disparage the commercial, business or financial reputation of the Group.
c. For purposes of clarification, but not of limitation, the Executive hereby
acknowledges and agrees that the provisions of sub-paragraphs 7(A) and (B)
above shall serve as a prohibition against him, during the period referred
to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee who has been
contacted by a representative of any member of the Group, including the
Executive, within a period of twelve (12) months prior to the termination
of the Executive's employment, or any customer of the Group (whether past
or present), to discontinue or alter his, her or its relationship with the
Group provided that this shall not prohibit the Executive from soliciting
the custom of any person in respect of a business which is not in
competition with
that of the Group.
d. Upon the termination of the Executive's employment for any reason
whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Group
which are in the possession of the Executive including all copies thereof,
shall be immediately returned to the Employer.
e. (i) The Executive agrees that all processes, technologies and inventions
("Inventions"), including new contributions, improvements, ideas and
discoveries, whether patentable or not, conceived, developed, invented or
made by him during his employment by Employer shall belong to the Employer,
provided that such Inventions grew out of the Executive's work with the
Employer, are related in any manner to the business (commercial or
experimental) of the Group are conceived or made on the Employer's time or
with the use of the Group's facilities or materials. The Executive shall
further:
(a) promptly disclose such Inventions to the Employer;
(b) assign to the Employer, without additional compensation, all
patent and other rights to such Inventions for the world;
(c) sign all papers necessary to carry out the foregoing; and
(d) give testimony in support of his inventorship;
(ii) If any Invention is described in a patent application or is disclosed
to third parties, directly or indirectly, by the Executive within two
years after the termination of his employment by the Employer, it is
to be presumed that the Invention was conceived or made during the
period of the Executive's employment by the Employer; and
(iii) The Executive agrees that he will not assert any rights to any
Invention as having been made or acquired by him prior to the date of
this Agreement, except for Inventions, if any, disclosed to the
Employer in writing prior to the date hereof.
f. As between the Executive and the Employer, the Employer shall be the sole
owner of all products and proceeds of the Executive's services hereunder,
including, but not limited to, all materials, ideas, concepts, formats,
suggestions, developments, arrangements, packages, programs and other
intellectual properties (all of which shall be deemed works made for hire)
that the Executive may acquire, obtain, develop or create in connection
with and during the term of the Executive's employment hereunder, free and
clear of any claims by the Executive (or anyone claiming under the
Executive) of any kind or character whatsoever (other than the Executive's
right to receive payments hereunder). The Executive shall, at the request
of the Employer, execute such assignments, certificates or other
instruments as the Employer may from time to time deem necessary or
desirable to evidence, establish, maintain, perfect, protect, enforce or
defend its right, or title and interest in or to any such properties.
g. The parties hereto hereby acknowledge and agree that:
(i) the Employer would be irreparably injured in the event of a breach by
the Executive of any of his obligations under this Section 7;
(ii) monetary damages would not be an adequate remedy for any such breach;
and
(iii) the Employer shall be entitled to injunctive relief, in addition to
any other remedy which it may have, in the event of any such breach.
h. The parties hereto hereby acknowledge that, in addition to any other
remedies the Employer may have under Section 7 (G) hereof, the Employer
shall have the right and remedy to require the Executive to account for and
pay over to the Employer all compensation, profits, monies, accruals,
increments or other benefits (collectively "Benefits") derived or received
by the Executive as the result of any transactions constituting a breach of
any of the provisions of Section 7, and the Executive hereby agrees to
account for and pay over such Benefits to the Employer.
i. Each of the rights and remedies enumerated in Section 7(H) and 7(I) shall
be independent of the other, and shall be severally enforceable, and all of
such rights and remedies shall be in addition to and not in lieu of, any
other rights and remedies available to the Employer under law or in equity.
j. If any provision contained in this Section 7 is construed to be invalid or
unenforceable, the same shall not affect the remainder of the covenant or
covenants, which shall be given full effect, without regard to the invalid
portions.
k. If any provision contained in this Section 7 is found to be unenforceable
by reason of the extent, duration or scope thereof, or otherwise, then the
court making such determination shall have the right to reduce such extent,
duration, scope or other provision and in its reduced form any such
restriction shall thereafter be enforceable as contemplated hereby.
I. It is the intent of the parties hereto that the covenants contained in this
Section 7 shall be enforced to the fullest extent permissible under the
laws and public policies of each jurisdiction in which enforcement is
sought (the Executive hereby acknowledging that said restrictions are
reasonably necessary for the protection of the Employer). Accordingly, it
is hereby agreed that if any of the provisions of this Section 7 shall be
adjudicated to be invalid or unenforceable for any reason whatsoever, said
provision shall be (only with respect to the operation thereof in the
particular jurisdiction in which such adjudication is made) construed by
limiting and reducing it so as to be enforceable to the extent permissible,
without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of said provision in any other
jurisdiction.
II. GENERAL
This Agreement is further governed by the following provisions:
a. Notices
All notices relating to this Agreement must be in writing and either personally
delivered, sent by facsimile (receipt confirmed) or mailed by certified mail,
return receipt requested, to be delivered at such address as is indicated below,
or at such other address or to the attention of such other person as the
recipient has specified by prior written notice to the sending party. Notice
will be effective when so personally delivered, one business day after being
sent by facsimile or five days after being mailed.
To the Employer: Brightpoint Asia Limited
With a copy to:
Brightpoint, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx,, XX 00000
Attention: General Counsel
To the Employee: Xxxx Xxxxxxxxx Du Plessis Xxxxxx
X.X. Xxx 00000
Xxxxx
Xxxxxx Xxxx Xxxxxxxx
b. Parties in Interest
Employee may not delegate his duties or assign his rights under this Agreement.
This Agreement will inure to the benefit of, and be binding upon, the parties
and their respective heirs, legal representatives, successors (whether through
reorganization, merger, sale of assets or otherwise) and permitted assigns.
c. Entire Agreement
This Agreement constitutes the entire Agreement of the parties about its subject
matter and supersedes any and all other agreements, either oral or in writing,
between the parties with respect to the employment of the Employee by the
Employer and contains all of the covenants and agreements between the parties
with respect to such employment in any manner whatsoever. Any modification or
termination of this Agreement will be effective only if it is in writing signed
by the party to be charged.
d. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
the State of Indiana.
e. Severability
In the event that the whole or any part of a provision in this Agreement is for
any reason be held by a court of competent jurisdiction to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
will not affect any other provision of this Agreement, but this Agreement will
be construed as if such invalid or illegal or unenforceable term or condition
had never been included. The remainder of this Agreement will have full force
and effect and the validity or enforceability of that provision in any other
jurisdiction is not affected. This clause has no effect if the severance alters
the basic nature of this agreement or is contrary to public policy.
f. Execution in Counterparts
This Agreement may be executed by the parties in one or more counterparts, each
of which will be deemed to be an original but all of which taken together will
constitute one and the same agreement, and will become effective when one or
more counterparts has been signed by each of the parties and delivered to each
of the other parties.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.