EMPLOYMENT AGREEMENT
Exhibit 10.1
This EMPLOYMENT AGREEMENT, effective August 29, 2011, between Brightpoint, Inc., an Indiana
corporation (the “Employer” or the “Company”), and Xxxxxx Xxxxx (the “Employee” or “Executive”).
The Employer desires to employ the Employee as its Senior Vice President, Chief Accounting Officer
and Controller, and the Employee desires to accept such employment on the terms and conditions
hereinafter set forth. The parties hereby agree as follows:
I. Term. The Employer hereby agrees to employ the Employee, and he hereby agrees to
serve Employer for a one-year period commencing effective as of August 29, 2011 (the “Effective
Date”) (such period being herein referred to as the “Initial Term”, and any year commencing on the
Effective Date or any anniversary of the Effective Date being hereinafter referred to as an
“Employment Year”). After the Initial Term and on the last day of any Employment Year thereafter,
this Agreement shall be automatically renewed for one (1) year (each such period being referred to
as a “Renewal Term”), unless prior written notice of the intent not to renew is provided to the
Employee by the Employer not later than thirty days before the commencement of any Renewal Term.
II. Employee Duties. During the term of this Agreement, the Employee shall have such
duties and responsibilities as reasonably determined by the Company. The parties understand that
the Employee’s job title and duties may be modified by the Company, in its reasonable discretion,
consistent with its business needs. He shall devote substantially all of his time, knowledge and
skills diligently and to the best of his ability in furtherance of the Company’s business.
III. Compensation. During the Initial Term, the Employer shall pay the Employee a
salary (the “Salary”) at a rate of Two Hundred Forty Thousand Dollars ($240,000) per annum in
respect of each Employment Year, payable in equal monthly installments (and pro-rated for the first
calendar year of employment). Such Salary may be modified after the Initial Term at the discretion
of the Company. In addition to the foregoing, the Employee shall be eligible for a bonus, which
may be paid at the sole discretion of the Company and consistent with the terms of any of the
Company’s bonus programs, as it may be establish, from time to time by the Company. The parties
understand that the bonus is not guaranteed. Beginning in 2012, he shall also be eligible to
participate in the Executive Equity Program under Brightpoint, Inc. 2004 Long-Term Incentive Plan,
consistent with the eligibility requirements and other terms and conditions, as amended from time
to time by the Company.
IV. Benefits. During the term of Employee’s employment with the Company, he shall
have the right to participate in such benefit plans as the Company may from time to time institute
for its regular employees, and his participation shall be in accordance with the eligibility
requirements of such plans. The parties acknowledge and agree that such plans may be amended
periodically by the Company at its discretion. The parties acknowledge that such plans currently
include medical, dental, life insurance, and the Company’s 401(k) plan. Paid time off may be taken
with the Employer’s prior approval, and consistent with the Employer’s paid time off policy, and
the Employee shall schedule time off so that it does not interfere with the fulfillment of his
duties and responsibilities.
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V. Termination. Employee’s employment and this Agreement may be terminated by the
Company in the event of the following circumstances: (1) the Employee’s death; (2) if, as a result
of the Employee’s physical or mental disability (which cannot be reasonably accommodated), he
cannot perform all of the essential functions of his position for a period of not less than ninety
days or (3) upon notice to the Employee, with or without Cause. For purposes of this Agreement,
the Employer shall have “Cause” to terminate the Employee’s employment under this Agreement in the
event of: (a) the Employee’s failure to satisfactorily perform his duties and responsibilities as
determined by the Company, or his failure to meet the Company’s expectations in the performance of
his duties and responsibilities as determined by the Company; (b) the Employee’s commission of any
act which the Company determines constitutes dishonest behavior or misconduct (including, but not
limited to, any action that may or does result in embarrassment or harm to the Company); the
Employee’s negligence or malfeasance; or the Employee’s failure to follow the Company’s rules,
policies, or procedures; or (c) the Employee’s conviction for a crime or the filing of criminal
charges against him. Any event or circumstances deemed by the Employer to constitute “cause” for
termination of the Employee shall not constitute “cause” unless and until: a) a description of the
event or circumstances in provided, in writing, to the Employee by the Employer; and b) such event
or circumstances are not cured by the Employee to the satisfaction of the Employer within fifteen
(15) days after written notice is given to the Employee. The Employer shall have the sole and
absolute discretion to determine whether the event or circumstances giving rise to a “cause”
termination are cured by the Employee. In addition to the above, the Employee may terminate this
Agreement and his employment hereunder upon at least thirty (30) days prior written notice to the
Employer. In the event of such notice, the Employer may, at its option, advance the date of the
Employee’s termination to a date earlier than that specified by the Employee if the Employer
determines that such is consistent with its business and transition needs. In such cases, the
Employee may be paid for the remainder of the thirty (30) days notice period and the parties agree
that under these circumstances, the Employee shall not receive any separation payment as described
in Section VII.c.
VI. Notice and Date of Termination. Any termination of the Employee’s employment by
the Company or by the Employee (other than termination by reason of the Employee’s death) shall be
communicated by written Notice of Termination to the other party. The “Date of Termination” shall
mean: (a) if the Employee’s employment is terminated by his death, the date of his death; (b) if
the Employee’s employment is terminated pursuant to any other reason set forth in Section V, the
date on which the Notice of Termination is given or such other date specified in the Notice by the
Company; and (c) if this Agreement is terminated by the Employee, the date specified by him in the
Notice (which shall be subject to advancement at the option of the Company, as described in Section
5).
VII. Compensation Upon Termination.
A. If the Employee’s employment shall be terminated by reason of his death or disability, the
Employer shall pay to such person as he shall designate in writing filed with the Employer, or if
no such person shall be designated, to his duly-qualified estate (and as otherwise provided by law)
as a lump sum benefit, his full Salary to the date of his death and such payment shall fully
discharge the Employer’s obligations to Employee and his estate with respect to this Agreement.
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B. If the Employee’s employment shall be terminated for Cause or if the Agreement is
terminated by the Employee, 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, and the Employer
shall have no further obligations to him with respect to this Agreement.
C. If the Employer terminates the Employee’s employment and this Agreement Upon a Change in
Control, other than for Cause (as defined in Section 5), death or disability, or other than as a
result of the Employee’s termination of this Agreement or his resignation, then the Employer shall
pay the Employee his full Salary through the Date of Termination at the rate in effect at the time
the Notice of Termination is given to him. In addition, in the event of such termination, the
Employer shall provide the Employee an opportunity to execute a Separation Agreement and Release of
Claims (“Separation Agreement”), to be prepared by the Employer, which shall include a provision
for a separation payment to the Employee. This separation payment shall be an amount equivalent to
the Employee’s annual base Salary in effect as of the Date of Termination. This separation payment
shall be in lieu of any further obligations to the Employee, including, but not limited to, any
arising under this Agreement.
VIII. Confidentiality; Noncompetition.
A. The Employer and the Employee acknowledge that the services to be performed by the Employee
under this Agreement are unique and extraordinary. As a result of his employment, the Employee
will be in possession of sensitive and highly confidential information relating to the business
practices of the Company, both in the United States and abroad. The term “confidential
information” shall mean any and all information (verbal and written) relating to the Company or any
of its affiliates, or any of their respective activities, other than such information which can be
shown by the Employee to be in the public domain (such information not being deemed to be in the
public domain merely because it is embraced by more general information which is in the public
domain) other than as the result of breach of the provisions of this Section 8.A, including, but
not limited to, information relating to: trade secrets, personnel lists, financial information,
research projects, services used, pricing, customers, customer lists and prospects, product
sourcing, marketing and selling and servicing. The Employee agrees that he will not, during or for
a period of five (5) years after the termination of employment, directly or indirectly, use,
communicate, disclose or disseminate to any person, firm or corporation any confidential
information regarding the clients, customers or business practices of the Company acquired by the
Employee during his employment by Employer, without the prior written consent of Employer;
provided, however, that the Employee understands that Employee will be prohibited from
misappropriating or disclosing any trade secret (as defined for purposes of Indiana law) at any
time during or after the termination of employment.
B. The Employee 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, within any county (or
adjacent county) in any State within the United States or within any country outside of the United
States in which the Company is engaged in business during the period of the Employee’s employment
or on the date of termination of the Employee’s employment, 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
Company’s principal business activities, whether such activities are carried on within the United
States and/or outside of the United States.
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C. The Employee hereby agrees that he shall not, during the period of his employment and for a
period of two (2) years following such employment, directly or indirectly, take any action which
constitutes an interference with or a disruption of any of the Company’s business activities
including, without limitation, the solicitation of any of the Company’s customers, or persons
listed on the personnel lists of the Company. At no time during the term of this Agreement, or
thereafter, shall the Employee directly or indirectly, disparage the commercial, business, or
financial reputation of the Company.
D. For purposes of clarification, but not of limitation, the Employee hereby acknowledges and
agrees that the provisions of Sections 8.B and 8.C 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 or customer who has been previously contacted by either a
representative of the Company, including the Employee, (but only those suppliers existing during
the time of the Employee’s employment by the Company, or at the termination of his employment), to
discontinue or alter his, her or its relationship with the Company.
E. Upon the termination of the Employee’s employment for any reason whatsoever, or at such
other time as directed by the Company, 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 Company which are in the possession of the Employee
including all copies thereof, shall be promptly returned to the Company.
F. 1. The Employee 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
Company, provided that such Inventions grew out of the Employee’s work with the Company, are
related in any manner to the business (commercial or experimental) of the Company or are conceived
or made on the Company’s time or with the use of the Company’s facilities or materials. The
Employee shall further: (a) promptly disclose such Inventions to the Company; (b) assign to the
Company, without additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out the foregoing; and
(d) give testimony in support of his inventorship;
2. If any Invention is described in a patent application or is disclosed to third parties,
directly or indirectly, by the Employee within two (2) years after the termination of his
employment by the Company, it is to be presumed that the Invention was conceived or made during the
period of the Employee’s employment by the Company; and
3. The Employee 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 Company in writing prior to the date hereof.
G. The Company shall be the sole owner of all products and proceeds of the Employee’s services
hereunder, including, but not limited to, all materials, ideas, concepts, formats, suggestions,
developments, arrangements, packages, programs and other intellectual
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properties that the Employee
may acquire, obtain, develop or create in connection with and during the term of the Employee’s
employment hereunder, free and clear of any claims by the Employee (or anyone claiming under the
Employee) of any kind or character whatsoever (other than the Employee’s right to receive payments
hereunder). The Employee shall, at the request of the Company, execute such assignments,
certificates or other instruments as the Company 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.
H. The parties hereto hereby acknowledge and agree that: (i) the Company would be irreparably
injured in the event of a breach by the Employee of any of his obligations under this Section 8;
(ii) monetary damages would not be an adequate remedy for any such breach; and (iii) the Company
shall be entitled to injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach. Furthermore, the parties agree that the period during which the
Employee’s activities are restricted, as set forth under this Section 8, shall be extended by any
period during which Employee is in breach of this Agreement.
I. The parties hereto hereby acknowledge that, in addition to any other remedies the Company
may have under Section 8.H hereof, the Company shall have the right and remedy to require the
Employee to account for and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits (collectively, “Benefits”) derived or received by the Employee as the
result of any transactions constituting a breach of any of the provisions of Section 8, and the
Employee hereby agrees to account for and pay over such Benefits to the Company.
J. Each of the rights and remedies enumerated in Section 8.H and 8.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 Company under law
or in equity.
K. If any provision contained in this Section 8 is hereafter 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. In addition, if any provision contained
in this Section 8 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. It is the intent of the parties hereto that the covenants
contained in this Section 8 shall be enforced to the fullest extent permissible under the laws and
public policies of each jurisdiction in which enforcement is sought (the Employee hereby
acknowledging that said restrictions are reasonably necessary for the protection of the Company).
IX. Indemnification. The Company shall indemnify and hold harmless the Employee
against any and all expenses reasonably incurred by him in connection with or arising out of: (a)
the defense of any action, suit or proceeding in which he is a party (other than any action, suit
or proceeding involving alleged misconduct or malfeasance by him); or (b) any claim asserted or
threatened against him, in either case by reason of or relating to him being or having been an
employee, officer or director of the Company, whether or not he continues to be such an employee,
officer or director at the time of incurring such expenses, except insofar as such
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indemnification
is prohibited by law (other than any action, suit or proceeding involving alleged misconduct or
malfeasance by him). Such expenses shall include, without limitation, the fees and disbursements
of attorneys, amounts of judgments and amounts of any settlements, provided that such expenses are
agreed to in advance by the Company. The foregoing indemnification obligation is independent of
any similar obligation provided in the Company’s Certificate of Incorporation, Bylaws or the like,
and shall apply with respect to any matters attributable to periods prior to the Effective Date,
and to matters attributable to his employment hereunder, without regard to when asserted.
X. General. This Agreement is further governed by the following provisions:
A. Notices. All notices relating to this Agreement shall be in writing and shall be
either personally delivered, sent by telecopy (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 shall be effective when so personally delivered, one business
day after being sent by telecopy or five days after being mailed.
To the Employer:
Brightpoint, Inc.
0000 Xxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
To the Employee:
Xxxxxx Xxxxx
At the home address he provides to the Company
B. Parties in Interest. Employee may not delegate his duties or assign his rights
hereunder. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective heirs, legal representatives, successors and permitted assigns.
C. Entire Agreement. This Agreement supersedes any and all other agreements, either
oral or in writing, between the parties hereto with respect to the employment of the Employee by
the Employer, and this Agreement 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. Employee agrees to and hereby does submit to jurisdiction
before any state or federal court of record in Xxxxxx County, Indiana, or in the state and county
in which such violation may occur, at Employer’s election.
E. Warranties. Employee hereby warrants and represents as follows: (a) that the
execution of this Agreement and the discharge of his obligations hereunder will not breach or
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conflict with any other contract, agreement, or understanding between Employee and any other party
or parties; and (b) that the Employee has ideas, information and know-how relating to the type of
business conducted by Employer, and Employee’s disclosure of such ideas, information and know-how
to Employer will not conflict with or violate the rights of any third party or parties.
F. Severability. In the event that any term or condition in this Agreement shall 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 shall not affect any other term or
condition of this Agreement, but this Agreement shall be construed as if such invalid or illegal or
unenforceable term or condition had never been contained herein.
G. Execution in Counterparts. This Agreement may be executed by the parties in one or
more counterparts, each of which shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement, and shall become effective when one or more
counterparts has been signed by each of the parties hereto and delivered to each of the other
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement effective as
of the Effective date on the dates set forth below.
| BRIGHTPOINT, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Printed: Xxxxxx X. Xxxxxx | ||||
| Title: | Chairman of the Board and Chief Executive Officer Date: |
|||
| Date: | August 29, 2011 | |||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
| Date: August 29, 2011 | ||||
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