EXHIBIT 10.3
AMENDMENT NO. 5 TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 5 (this "Amendment") TO THE AMENDED AND RESTATED
EMPLOYMENT AGREEMENT dated as of July 1, 1999, between Brightpoint, Inc., an
Indiana corporation (the "Employer" or the "Company"), and Xxxxxx X. Xxxxx (the
"Employee") is entered into as of April 7, 2005.
WHEREAS, the Employer and the Employee have entered into an amended and
restated employment agreement dated as of July 1, 1999, as amended by those
certain amendments dated as of January 1, 2001, January 1, 2002, January 1, 2003
and January 1, 2004 (the "Employment Agreement");
WHEREAS, the Employer and the Employee wish to amend certain sections of
the Employment Agreement as provided below;
NOW, THEREFORE, in consideration of the premises and mutual benefits and
covenants contained herein, the parties hereto agree as follows:
1. Amendments.
(a) Section III.A. of the Employment Agreement shall be amended and
restated in its entirety as follows:
A. During the term of this Agreement, the Employer shall pay
the Employee a salary (the "Salary") at a rate of $350,000 per annum
in respect of each Employment Year, payable in equal monthly
installments on the first day of each month, or at such other times
as may mutually be agreed upon between the Employer and the
Employee. Such Salary may be increased from time to time at the
discretion of the Board.
(b) The first sentence of Section IX(e) shall be amended and
restated in its entirety as follows:
In the event that the aggregate of all payments or benefits made
or provided to the Employee under this Agreement and under all other
plans, programs and arrangements of the Employer (the "Severance
Total") is determined to constitute a "parachute payment," as such
term is defined in Section 280G(b)(2) of the Internal Revenue Code
of 1986, as amended (the "Code"), then the Severance Total shall be
increased by an amount (the "Increase") sufficient so that after the
payment by the Employee of (A) any income taxes on the Increase and
(B) any excise tax on the sum of (I) the Severance Total and (II)
the Increase, the Employee shall have received an amount (net of
such taxes) equal to the Severance Total.
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(c) Section IX(h) of the Employment Agreement shall be amended and
restated in its entirety as follows:
(h) (A) Upon the occurrence of a Change of Control, or (B) if
in breach of this Agreement the Employer shall terminate the
Employee's employment other than pursuant to Sections 6.2 or 6.3
hereof (it being understood that a purported termination pursuant to
Section 6.2 or 6.3 hereof which is disputed and finally determined
not to have been proper shall be a termination by the Employer in
breach of this Agreement), or (C) if the Employee shall terminate
his employment for Good Reason at any time, then notwithstanding the
vesting and exercisability schedule in any stock option or
restricted stock award agreement relating to a regular, annual stock
option or restricted stock award to the Employee, (x) all
then-unvested stock options pursuant to such awards shall
immediately vest and become exercisable and shall remain exercisable
for 180 days thereafter (or the expiration of the term of the stock
option, if shorter) and (y) all then-unvested shares of restricted
stock pursuant to such awards shall immediately vest.
(d) A new Section IX(i) shall be added to the Employment Agreement
as follows:
(i) Severance Cap.
(A) Notwithstanding Subsection 9(d)(ii) and Section 9(h)
above, the total value to be received by the Employee due to the
Severance Pay pursuant to Subsection 9(d)(ii) and the accelerated
vesting pursuant to Section 9(h) (the "Accelerated Vesting") (such
total value referred to herein as the "Total Severance Value") may
not exceed $2.25 million (the "Severance Cap"). For the avoidance of
doubt, any accelerated vesting of the restricted stock award granted
to the Employee on April 7, 2005 and any Increase provided to the
Employee pursuant to Section 9(e) hereof shall not count toward or
be subject to the Severance Cap.
(B) For purposes of calculating the value of the Accelerated
Vesting, (i) the value of the accelerated vesting of an option on a
share of stock shall equal the result of the Fair Market Value (as
defined in the Brightpoint, Inc. 2004 Long-Term Incentive Plan (the
"Plan")) for such share of stock underlying the option on the date
of the accelerated vesting less the strike price for such option (if
such result is a negative number, the result shall be deemed to be
zero) and (ii) the value of the accelerated vesting of a share of
restricted stock shall equal the Fair Market Value for such share of
stock on the date the vesting accelerates. In addition, if the
Employee receives Accelerated Vesting upon a Change of
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Control, then, for purposes of calculating the Total Severance
Value, any Accelerated Vesting and Severance Pay the Employee
receives within the 12-month period following the Accelerated
Vesting received upon the Change of Control shall each be added to
calculate the Total Severance Value (with the value of each
Accelerated Vesting and the Severance Pay to be at face value
without adjustment for any time value of money). If elected by the
Employee, the determination of whether the Total Severance Value
exceeds the Severance Cap shall be made by a nationally recognized
United States public accounting firm (the "Accounting Firm") jointly
selected by the Employer and the Employee and paid by the Employer,
with such determination following the valuation guidance provided in
this Section 9(i). If the Employee and the Employer cannot agree on
the firm to serve as the Accounting Firm, then the Employee and the
Employer shall each select one accounting firm and those two firms
shall jointly select the Accounting Firm. For the avoidance of
doubt, any accelerated vesting of the restricted stock award granted
to the Employee on April 7, 2005 shall not count toward or be
subject to the Severance Cap.
(C) If a reduction in the Total Severance Value is required,
then the Employee shall choose to either reduce the Severance Pay or
to limit Accelerated Vesting, to the extend needed; provided,
however, that if the Total Severance Value is the sum of Accelerated
Vesting received upon a Change of Control and subsequent Accelerated
Vesting and/or Severance Pay, the reduction chosen by the Employee
may not affect the Accelerated Vesting received upon the Change of
Control.
2. Miscellaneous.
(a) This Amendment is a legal and binding obligation of the parties,
enforceable in accordance with its terms.
(b) This Amendment shall be construed in accordance with the
internal laws and not the choice of law provisions of the State of Indiana.
(c) Except as specifically amended hereby, the Employment Agreement
shall remain in full force and effect. In the event the terms of the Employment
Agreement conflict with this Amendment, the terms of this Amendment shall
control.
(d) Except as otherwise provided herein, this Amendment contains the
entire understanding between the parties, and there are no other agreements or
understandings between the parties with respect to the subject matter hereof. No
alteration or modification hereof shall be valid except by a subsequent written
instrument executed by the parties hereto.
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(e) This Amendment may be executed in any number of counterparts,
and each such counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute only one agreement. Any facsimile of
this Amendment shall be considered an original document.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Amendment No. 5 to Amended and Restated Employment Agreement as of the date
first set forth above.
BRIGHTPOINT, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Lead Independent Director
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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