EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (this "Agreement"), effective as of the 12th
day of December, 2001 (the "Effective Date"), by and between CellStar Ltd. (the
"Employer"), CellStar Corporation, a Delaware corporation and parent company of
Employer ("Parent"), and Xxxxxx Xxxxxx (the "Employee").
R E C I T A L S
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WHEREAS, Employer desires to obtain the benefit of the services of
Employee as an employee of Employer for the period of time provided in this
Agreement; and
WHEREAS, Employee desires to render services for Employer on the terms
and conditions hereinafter provided; and
WHEREAS, Employer desires that Employee be able to participate in
Parent's stock option and incentive compensation plans; and
WHEREAS, the Compensation Committee of the Board of Directors of Parent
deems it advisable and in the best interests of Parent and Employer to enter
into this Employment Agreement with Employee;
A G R E E M E N T
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
ARTICLE I
Employment
1.1 Employment. Effective on the Effective Date the Employer shall
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employ the Employee and the Employee shall accept employment by the Employer for
the period and upon the terms and conditions contained in this Agreement.
Employee shall report for work in Carrollton, Texas, on or before December 12,
2001 (such date being hereinafter referred to as the "Start Date"), failing
which this Agreement shall be null and void for all purposes and any and all
stock options granted pursuant to Section 1.4(d) shall be canceled.
1.2 Term. The term of this Agreement shall commence on the Effective
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Date and shall end on the four (4) year anniversary of the Effective Date (the
"Original Term"), unless earlier terminated as provided herein (the period from
the Effective Date to the four (4) year anniversary of the Effective Date, or to
the date of such earlier termination, as applicable, is hereinafter referred to
as the "Term"). At the expiration of the Original Term, this Agreement may be
renewed on a year to year basis by written agreement of the parties hereto.
1.3 Position and Duties.
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(a) Position. During the Term, the Employee shall serve as
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Senior Vice President and Chief Financial Officer of Employer, with
authority, duties and responsibilities consistent with such position,
and shall perform such other services for Employer, Parent and their
affiliated entities consistent with such position as may be reasonably
assigned to him from time to time by the Chief Executive Officer and/or
the boards of directors of Employer and/or Parent. It is specifically
understood that, over time, Employee desires to assume greater
responsibility for business operations, particularly in the Employer's
North American Region. In this regard, Employee has agreed to serve as
Senior Vice President and Chief Financial Officer of Employer so long
as Employer agrees to consider Employee for the position of President
of the Company's North American Region. To demonstrate its willingness
to do so, Employer agrees to establish an escrow account in the amount
of $700,000, which amount shall be paid to Employee in the event
Employee has not been named as Senior Vice President of the Parent and
President of the Employer's North American Region on or before June 1,
2002. During the Term, Employee shall, if so elected or appointed, also
accept election or appointment, and serve, as an officer and/or
director of Employer or any of its affiliated entities and perform the
duties appropriate thereto, without additional compensation other than
as set forth herein. Employee's actions hereunder shall at all times be
subject to the direction of the Chief Executive Officer and the boards
of directors of Employer and Parent.
(b) Commitment. During the Term, the Employee shall devote
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substantially all of his business time, energy, skill and best efforts
to the performance of his duties hereunder in a manner that will
faithfully and diligently further the business and interests of
Employer, Parent and their affiliated entities. Subject to the
foregoing, the Employee may serve in any capacity with any civic,
educational or charitable organization; provided that such activities
and services do not interfere or conflict with the performance of his
duties hereunder. Employee shall comply with policies, standards and
regulations established from time to time by senior management and/or
the boards of directors of Employer and Parent.
(c) Location and Travel. During the Term, the Employer shall
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not, without the written consent of the Employee, relocate or transfer
the Employee to any location other than the Company's corporate
headquarters in the Dallas/Fort Worth area. The Employee agrees to
travel for business purposes in a reasonable amount for reasonable
lengths of time, commensurate with the Employee's position.
1.4 Compensation.
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(a) Base Salary. Subject to Section 1.4(c) below, Employer
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shall pay the Employee as compensation an aggregate salary ("Base
Salary") of $450,000 per year during the Term, or such greater amount
as shall be approved in accordance with the policies of
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Employer and/or Parent, as applicable. The Base Salary for
each year shall be paid by Employer in accordance with the regular
payroll practices of Employer.
(b) Annual Incentive Payment. Each year during the Term,
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the Employee shall be eligible to participate in an annual incentive
plan approved by the Parent's Board of Directors.
(c) Withholding. With respect to any compensation received by
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Employee with respect to Employee's services for Employer or any of its
affiliates, Employer will deduct such withholding and other payroll
taxes as are required to be withheld by Employer under applicable law.
(d) Stock Options. Parent will recommend to the Board of
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Directors of Parent that Employee be granted a stock option (the
"Option") entitling him to purchase 400,000 shares of Parent's common
stock at the reported market closing sales price thereof on the date of
grant, which date shall be the Effective Date hereof. The Option shall
become exercisable by the Employee at the rate of 25% of the shares
covered thereby per year, beginning on the first anniversary of the
Effective Date in accordance with the terms of the Parent's 1993
Amended and Restated Long Term Incentive Plan; provided, however, that
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any unvested portion of the Option shall immediately vest if the
Employee's employment is terminated Without Cause (defined below). The
Option shall contain such additional terms as are set forth in Parent's
1993 Amended and Restated Long Term Incentive Plan and as are
established by the Board of Directors of Parent. Employee shall be
entitled to annual consideration for future grants in amounts (if any)
and on terms and conditions to be determined by the Compensation
Committee of the Board of Directors.
(e) Payment and Reimbursement of Expenses. During the Term,
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Employer shall pay or reimburse the Employee for all reasonable travel
and other expenses incurred by the Employee in performing his
obligations under this Agreement in accordance with the policies and
procedures of Employer or Parent, provided that the Employee properly
accounts therefor in accordance with the regular policies of Employer
or Parent, as applicable.
(f) Life Insurance. During the Term and subject to the
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Employee's qualification under normal life insurance underwriting
standards as of the date hereof and at any policy renewal date, the
Employer shall provide, at Employer's expense, life insurance on the
life of the Employee totaling $1,500,000 for the benefit of such
beneficiary or beneficiaries as may be designated from time to time by
the Employee. Such life insurance shall be inclusive of any life
insurance made generally available by Employer or Parent to employees,
as set forth in subsection (h) below.
(g) Disability Insurance. During the Term and subject to
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the Employee's qualification under normal disability insurance
underwriting standards as of the date hereof
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and at any policy renewal date, Employer shall provide, at Employer's
expense, disability insurance that will pay the Employee, pursuant to
the terms of such policy or policies, annual disability benefits
totaling $200,000 until the Employee reaches the age of 65. Such
disability insurance shall be inclusive of any disability insurance
made generally available by Employer or Parent to employees, as set
forth in subsection (h)below.
(h) Fringe Benefits and Perquisites. During the Term, the
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Employee shall be entitled to participate in or receive benefits under
any stock purchase, profit-sharing, pension, retirement, paid time off,
life, medical, dental, disability or other plan or arrangement made
generally available by Employer or Parent to employees, subject to and
on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Employee shall be
credited with ten (10) years of service with the Employer as of the
Effective Date for purposes of determining eligibility and vesting for
paid time off and short-term disability benefits.
(i) Signing Bonus. As an inducement and in further
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consideration of the Employee entering into this Agreement and
accepting the responsibilities and duties set forth herein, the
Employer agrees to pay the Employee a signing bonus in an amount equal
to $300,000, such amount being payable on thirty (30) days following
the Start Date.
1.5 Termination.
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(a) Disability. Employer may terminate this Agreement for
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Disability. "Disability" shall exist if, because of ill health or
physical or mental disability, the Employee shall have been unable to
perform his duties under this Agreement, with or without reasonable
accommodation by the Employer, as determined in good faith by Parent's
Board of Directors or a committee thereof, for a period of 180
consecutive days, or if, in any 12-month period, the Employee shall
have been unable or shall have failed to perform his duties for a
period of 270 or more business days, irrespective of whether or not
such days are consecutive.
(b) Cause. Employer may terminate the Employee's employment
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for Cause. Termination for "Cause" shall mean termination because of
the Employee's (i) gross incompetence, (ii) willful misconduct that
causes or is likely to cause economic harm to Employer, Parent or their
affiliated entities or that brings or is likely to bring discredit to
the reputation of Employer, Parent or any of their affiliated entities,
as determined by the Board of Directors of Parent in good faith, (iii)
failure to follow directions of the Chief Executive Officer or the
boards of directors of Employer or Parent that are consistent with his
duties under this Agreement, (iv) conviction of, or entry of a pleading
of guilty or nolo contendre to, any crime involving moral turpitude or
entry of an order duly issued by any federal or state regulatory agency
having jurisdiction in the matter permanently prohibiting Employee from
participating in the conduct of the affairs of Employer, Parent or
their affiliated entities, or
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(v) any other material breach of any provision of this Agreement that
is not remedied within 30 days after receipt of written notice from
Employer or Parent specifying such breach.
(c) Without Cause. During the Term, Employer may terminate
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the Employee's employment Without Cause, subject to the provisions of
subsection 1.6(c) (Termination Without Cause or for Company Breach).
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Termination "Without Cause" shall mean termination of the Employee's
employment by Employer other than termination for Cause or for
Disability.
(d) Company Breach. The Employee may terminate his employment
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hereunder for Company Breach. For purposes of this Agreement a "Company
Breach" shall be deemed to occur in the event of a material breach of
this Agreement by Employer or Parent; provided, however, that the
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Employee shall not be entitled to terminate for Company Breach unless
the Employee notifies Employer thereof in writing, specifying in
reasonable detail the basis therefor and stating that it is grounds for
Company Breach, and unless Employer fails to cure such Company Breach
within 60 days after such notice is sent or given under this Agreement.
For purposes of this Agreement, a material breach by Employer or Parent
shall include, without limitation, (i) if the Employee's eligibility
for a bonus in any fiscal year (provided that all performance standards
established for him have been achieved) shall be, in terms of a
percentage of base salary, any amount less than the percentage of base
salary established for the Chief Executive Officer of Parent for such
fiscal year, or (ii) if the Employee's eligibility for bonus in any
fiscal year shall be based on performance standards that are materially
greater or different than those established for the Chief Executive
Officer of Parent. It is specifically understood that the failure of
the Company to name Employee the President of the Company's North
American Region within the time frame set forth in Section 1.3(a)
hereof shall not constitute a Company Breach.
(e) Change in Control. The Employee may terminate his
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employment hereunder within 12 months of a Change in Control
(defined below):
(i) "Change in Control" shall mean any of the following:
(1) any consolidation or merger of Parent in
which Parent is not the continuing or surviving
corporation or pursuant to which shares of Parent's
common stock would be converted into cash, securities
or other property, other than a merger of Parent in
which the holders of Parent common stock immediately
prior to the merger have the same proportionate
ownership of common stock of the surviving
corporation immediately after the merger;
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(2) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions)
of all or substantially all of the assets of Parent;
(3) any approval by the stockholders of Parent
of any plan or proposal for the liquidation or
dissolution of Parent;
(4) the cessation of control (by virtue of
their not constituting a majority of directors) of
Parent's Board of Directors by the individuals (the
"Continuing Directors") who (x) at the date of this
Agreement were directors or (y) become directors
after the date of this Agreement and whose election
or nomination for election by Parent's stockholders,
was approved by a vote of at least two-thirds of the
directors then in office who were directors at the
date of this Agreement or whose election or
nomination for election was previously so approved);or
(5) subject to applicable law, in a Chapter
11 bankruptcy proceeding, the appointment of a trustee or
the conversion of a case involving Parent to a case under
Chapter 7.
(f) Without Good Reason. During the Term, the Employee may
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terminate his employment Without Good Reason upon 30 days prior written
notice to Employer of such termination, which notice may be waived by
Employer in Employer's discretion. Termination "Without Good Reason"
shall mean termination of the Employee's employment by the Employee
other than termination for Company Breach.
(g) Explanation of Termination of Employment. Any party
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terminating this Agreement shall give prompt written notice ("Notice
of Termination") to the other party hereto advising such other party
of the termination of this Agreement stating in reasonable detail the
basis for such termination. The Notice of Termination shall indicate
whether termination is being made for Cause, Without Cause or for
Disability (if Employer has terminated the Agreement) or for Company
Breach, upon a Change in Control or Without Good Reason (if the
Employee has terminated the Agreement).
(h) Date of Termination. "Date of Termination" shall mean
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the last day of Employee's employment, as determined
in accordance with this Section 1.5.
1.6 Compensation Upon Termination.
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(a) During Disability. During any period that the Employee
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fails to perform his duties hereunder because of ill health or physical
or mental disability, he shall continue to receive his full salary and
benefits pursuant to Section 1.4 (Compensation) through the Date
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of Termination, after giving effect to all disability benefits
received by Employee under the terms of any applicable disability
policy.
(b) Termination for Cause or Without Good Reason. If Employer
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shall terminate the Employee's employment for Cause or if the Employee
shall terminate his employment Without Good Reason, then Employer's
obligation to pay salary and benefits pursuant to Section 1.4
(Compensation) shall terminate, except that Employer shall pay the
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Employee his accrued but unpaid salary and benefits pursuant to Section
1.4 (Compensation) through the Date of Termination.
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(c) Termination Without Cause or for Company Breach. If
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Employer shall terminate the Employee's employment Without Cause or if
the Employee shall terminate his employment for Company Breach, then
Employer shall pay to the Employee, as severance pay in a lump sum on
the 15th day following the Date of Termination, the following amounts:
(i) his accrued but unpaid Base Salary through the
Date of Termination at the rate in effect as of the Date of
Termination; and
(ii) in lieu of any further Base Salary and Annual
Incentive Payments for periods subsequent to the Date of
Termination, an amount equal to the product of (A) the sum of
Employee's Base Salary at the rate in effect as of the Date of
Termination plus the amount of the Annual Incentive Payment
paid to the Employee for the preceding year (or such shorter
period for which any Annual Incentive Payment has been paid)
divided by 365 and (B) multiplied by the lesser of (y) 720, or
(z) the number of days from the Date of Termination to the
last day of the Original Term or the applicable renewal term,
but in no event less than 365 days.
In addition, the Employee will be entitled to a prorated
portion of any annual incentive payment earned for the fiscal year in
which his employment is terminated, if earned in accordance with the
terms of its grant.
Employee hereby acknowledges and agrees that the payments by
the Employer under this Section 1.6(c) shall be the sole and exclusive
remedy of the Employee for termination of Employee's employment Without
Cause or by reason of a Company Breach, and Employee hereby waives any
and all other remedies under law or in equity.
If the Employee terminates his employment for Company Breach
based upon a material reduction by Employer of the Employee's Base
Salary, then for purposes of this subsection 1.6(c) (Termination
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Without Cause or for Company Breach), the Employee's Base Salary as of
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the Date of Termination shall be deemed to be the Employee's Base
Salary immediately prior to the reduction that the Employee claims as
grounds for Company Breach.
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(d) Termination Upon a Change in Control. If the Employee
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terminates his employment after a Change in Control pursuant to
subsection 1.5(e) (Change in Control), then Employer shall pay to the
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Employee as severance pay and as liquidated damages (because actual
damages are difficult to ascertain), in a lump sum, in cash, within 15
days after termination, an amount which, when combined with all
payments under Section 1.6(c), equals $100 less than three (3) times
the Employee's "annualized includable compensation for the base period"
(as defined in Section 280G of the Internal Revenue Code of 1986);
provided, however, that if such lump sum severance payment, either
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alone or together with other payments or benefits, either cash or
non-cash, that the Employee has the right to receive from Employer,
including, but not limited to, accelerated vesting or payment of any
deferred compensation, options, stock appreciation rights or any
benefits payable to the Employee under any plan for the benefit of
employees, would constitute an "excess parachute payment" (as defined
in Section 280G of the Internal Revenue Code of 1986), then such lump
sum severance payment or other benefit shall be reduced to the largest
amount that will not result in receipt by the Employee of a parachute
payment. The determination of the amount of the payment described in
this subsection shall be made by Parent's independent auditors.
(e) Termination for Disability. If Employer shall terminate
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the Employee's employment for Disability, Employer's obligation to pay
salary and benefits pursuant to Section 1.4 (Compensation) shall
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terminate, except that Employer shall pay the Employee accrued but
unpaid salary and benefits pursuant to Section 1.4 (Compensation)
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through the Date of Termination, after giving effect to all disability
benefits received by Employee under the terms of any applicable
disability policy.
(f) Employee Benefits. Employer shall maintain in full force
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and effect (to the extent consistent with past practice), for the
continued benefit of Employee and, if applicable, his wife and
children, the employee benefits set forth in subsections 1.4(f)
(Fringe Benefits and Perquisites) through the Date of Termination
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(subject to the provisions of Section 1.6(e)); provided that his
continued participation or, if applicable, the participation of his
wife and children, is possible under the general terms and conditions
of such plans and programs.
1.7 Death of Employee. If Employee dies prior to the expiration of this
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Agreement, Employee's employment and other obligations under this Agreement
shall automatically terminate and all compensation to which Employee is or would
have been entitled hereunder (including without limitation under subsections
1.4(a) (Base Salary) and 1.4(b) (Annual Incentive Payment)) shall terminate as
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of the end of the month in which Employee's death occurs; provided, however,
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that (i) Employer shall pay to Employee's estate, as soon as practicable, a
prorated Annual Incentive Payment, if earned in accordance with Parent's annual
incentive plan; and (ii) for the balance of the month in which Employee's death
occurs, Employee's wife and children shall be entitled to receive their benefits
under Employer's group hospitalization, medical and dental plans (if any), to
the extent permitted under the terms of such plans.
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ARTICLE 2
Non-Competition and Confidentiality
2.1 Non-Competition.
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(a) Description of Proscribed Actions. During the Term and for a
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period of 18 months thereafter, in consideration for the obligations of
Employer and Parent hereunder, including without limitation their
disclosure (pursuant to subsection 2.2(b) (Obligation of The Company)
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below) of Confidential Information, the Employee shall not:
(i) directly or indirectly, engage or invest in, own, manage,
operate, control or participate in the ownership, management,
operation or control of, be employed by, associated or in any manner
connected with, or render services or advice to, any Competing
Business (defined below); provided, however, that the Employee may
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invest in the securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if (x) such
securities are listed on any national or regional securities exchange
or have been registered under Section 12(g) of the Exchange Act and
(y) the Employee does not beneficially own (as defined Rule 13d-3
promulgated under the Exchange Act) in excess of 5% of the outstanding
capital stock of such enterprise;
(ii) directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee,
employer, advisor (whether paid or unpaid), stockholder, partner or in
any other individual or representative capacity whatsoever, either for
his own benefit or for the benefit of any other person or entity,
solicit, divert or take away any suppliers, customers or clients of
the Company or any of its Affiliates; or
(iii) directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee,
employer, advisor (whether paid or unpaid), stockholder, partner or in
any other individual or representative capacity whatsoever, either for
his own benefit or for the benefit of any other person or entity,
either (i) hire, attempt to hire, contact or solicit with respect to
hiring, any employee of Employer or Parent or any Affiliate thereof,
(ii) induce or otherwise counsel, advise or encourage any employee of
Employer, Parent or any Affiliate thereof to leave the employment of
Employer, Parent or any Affiliate thereof, or (iii) induce any
representative or agent of Employer, Parent or any Affiliate thereof
to terminate or modify its relationship with Employer, Parent or such
Affiliate.
(b) Judicial Modification. The Employee agrees that if a court of
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competent jurisdiction determines that the length of time or any other
restriction, or portion thereof, set
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forth in this Section 2.1 (Non-Competition) is overly restrictive and
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unenforceable, the court may reduce or modify such restrictions to those
which it deems reasonable and enforceable under the circumstances, and as
so reduced or modified, the parties hereto agree that the restrictions of
this Section 2.1 (Non-Competition) shall remain in full force and effect.
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The Employee further agrees that if a court of competent jurisdiction
determines that any provision of this Section 2.1 (Non-Competition) is
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invalid or against public policy, the remaining provisions of this Section
2.1 (Non-Competition) and the remainder of this Agreement shall not be
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affected thereby, and shall remain in full force and effect.
(c) Nature of Restrictions. The Employee acknowledges that the
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business of Employer and Parent and their Affiliates is international in
scope and that the Restrictions imposed by this Agreement are legitimate,
reasonable and necessary to protect Employer's, Parent's and their
Affiliates' investment in their businesses and the goodwill thereof. The
Employee acknowledges that the scope and duration of the restrictions
contained herein are reasonable in light of the time that the Employee has
been or will be engaged in the business of Employer, Parent and/or their
Affiliates, and the Employee's relationship with the suppliers, customers
and clients of Employer, Parent and their Affiliates. The Employee further
acknowledges that the restrictions contained herein are not burdensome to
the Employee in light of the consideration paid therefor and the other
opportunities that remain open to the Employee. Moreover, the Employee
acknowledges that he has other means available to him for the pursuit of
his livelihood.
(d) Competing Business. "Competing Business" shall mean any
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individual, business, firm, company, partnership, joint venture,
organization, or other entity engaged in the wholesale distribution or
retail sales of wireless communication equipment in any domestic or
international market area in which Employer, Parent or any of their
Affiliates does business at any time during the Employee's employment with
Employer or any of its Affiliates, except SBC Communications, Inc. and its
wholly-owned subsidiaries.
2.2 Confidentiality. For the purposes of this Section 2.2
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(Confidentiality), the term "the Company" shall be construed also to include
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Employer, Parent and any and all Affiliates of Employer and Parent.
(a) Confidential Information. "Confidential Information" shall mean
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information that is used in the Company's business and
(i) is proprietary to, about or created by the Company;
(ii) gives the Company some competitive advantage, the
opportunity of obtaining such advantage or the disclosure of which
could be detrimental to the interests of the Company;
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(iii) is not typically disclosed to non-employees by the Company,
or otherwise is treated as confidential by the Company; or
(iv) is designated as Confidential Information by the Company or
from all the relevant circumstances should reasonably be assumed by
the Employee to be confidential to the Company.
Confidential Information shall not include information publicly known
(other than as a result of a disclosure by the Employee ). The phrase
"publicly known" shall mean readily accessible to the public in a written
publication and shall not include information that is only available by a
substantial searching of the published literature or information the
substance of which must be pieced together from a number of different
publications and sources, or by focused searches of literature guided by
Confidential Information.
(b) Obligation of The Company. During the Term, the Company shall
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provide access to, or furnish to, the Employee Confidential Information of
the Company necessary to enable the Employee properly to perform his
obligations under this Agreement.
(c) Non-Disclosure. The Employee acknowledges, understands and agrees
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that all Confidential Information, whether developed by the Company or
others or whether developed by the Employee while carrying out the terms
and provisions of this Agreement (or previously while serving as an officer
of the Company), shall be the exclusive and confidential property of the
Company and (i) shall not be disclosed to any person other than employees
of the Company and professionals engaged on behalf of the Company, and
other than disclosure in the scope of the Company's business in accordance
with the Company's policies for disclosing information, (ii) shall be
safeguarded and kept from unintentional disclosure and (iii) shall not be
used for the Employee's personal benefit. Subject to the terms of the
preceding sentence, the Employee shall not use, copy or transfer
Confidential Information other than as is necessary in carrying out his
duties under this Agreement.
2.3 Injunctive Relief. Because of the Employee's experience and reputation
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in the industries in which Employer, Parent and their Affiliates operate, and
because of the unique nature of the Confidential Information, the Employee
acknowledges, understands and agrees that Employer and Parent will suffer
immediate and irreparable harm if the Employee fails to comply with any of his
obligations under Article 2 (Non-Competition and Confidentiality) of this
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Agreement, and that monetary damages will be inadequate to compensate Employer
and Parent for such breach. Accordingly, the Employee agrees that Employer and
Parent shall, in addition to any other remedies available to them at law or in
equity, be entitled to injunctive relief to enforce the terms of Article 2
(Non-Competition and Confidentiality), without the necessity of proving
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inadequacy of legal remedies or irreparable harm.
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ARTICLE 3
Representations and Warranties by Employee
Employee hereby represents and warrants, the same being part of the essence
of this Agreement, that, as of the Effective Date, he is not a party to any
agreement, contract or understanding, and that no facts or circumstances exist,
that would in any way restrict or prohibit him from undertaking or performing
any of his obligations under this Agreement. The foregoing representation and
warranty shall remain in effect throughout the Term.
ARTICLE 4
Indemnification
Parent agrees to indemnify, and advance expenses to, the Employee to the
extent provided in the Certificate of Incorporation and Bylaws of Parent as of
the date of this Agreement. To the extent that a change in the Delaware General
Corporation Law (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under Parent's
Certificate of Incorporation and Bylaws and this Agreement, it is the intent of
the parties hereto that the Employee shall enjoy by this Agreement the greater
benefits so afforded by such change.
ARTICLE 5
Miscellaneous
5.1 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
5.2 Indulgences, Etc. Neither the failure nor any delay on the part of
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either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege, nor shall any
waiver of any right, remedy, power, or privilege with respect to any occurrence
be construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence.
5.3 Employee's Sole Remedy. The Employee's sole remedy shall be against
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Employer or Parent for any claim, liability or obligation of any nature
whatsoever arising out of or relating to this Agreement or an alleged breach of
this Agreement or for any other claim arising out of the Employee's employment
by Employer, his service to Employer or its Affiliates or the termination of the
Employee's employment hereunder (collectively, "Employee Claims"). The Employee
shall have
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no claim or right of any nature whatsoever against any of Employer's or its
Affiliates' directors, former directors, officers, former officers, employees,
former employees, stockholders, former stockholders, agents, former agents or
the independent counsel in their individual capacities arising out of or
relating to any Employee Claim. The Employee hereby releases and covenants not
to xxx any person other than Employer or Parent over any Employee Claim. The
persons described in this Section 5.3 (other than Employer, Parent and the
Employee) shall be third-party beneficiaries of this Agreement for purposes of
enforcing the terms of this Section 5.3 (Employee's Sole Remedy) against the
----------------------
Employee.
5.4 Notices. All notices, requests, demands and other communications
-------
required or permitted under this Agreement and the transactions contemplated
herein shall be in writing and shall be deemed to have been duly given, made and
received when sent by telecopy (with a copy sent by mail) or when personally
delivered or one business day after it is sent by overnight service, addressed
as set forth below:
If to the Employee:
Xxxxxx Xxxxxx
0000 Xxxxxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
If to Employer or Parent:
CellStar Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attn: General Counsel
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this subsection for the giving of notice, which shall be effective only upon
receipt.
5.5 Provisions Separable. The provisions of this Agreement are independent
--------------------
of and separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
5.6 Entire Agreement. This Agreement contains the entire understanding
----------------
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained, which shall be deemed terminated effective immediately. The express
terms hereof control and supersede any course of performance and/or usage of the
trade
13
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
5.7 Headings; Index. The headings of paragraphs herein are included solely
----------------
for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
5.8 Governing Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Texas, without giving effect to
principles of conflict of laws.
5.9 Dispute Resolution. Subject to Employer's and Parent's right to seek
------------------
injunctive relief in court as provided in Section 2.3 (Injunctive Relief) of
-----------------
this Agreement, any dispute, controversy or claim arising out of or in relation
to or connection to this Agreement, including without limitation any dispute as
to the construction, validity, interpretation, enforceability or breach of this
Agreement, shall be exclusively and finally settled by arbitration, and any
party may submit such dispute, controversy or claim, including a claim for
indemnification under this Section 5.9 (Dispute Resolution), to arbitration.
------------------
(a) Arbitrators. The arbitration shall be heard and determined by one
-----------
arbitrator, who shall be impartial and who shall be selected by mutual
agreement of the parties; provided, however, that if the dispute involves
-------- -------
more than $2,000,000, then the arbitration shall be heard and determined by
three (3) arbitrators. If three (3) arbitrators are necessary as provided
above, then (i) each side shall appoint an arbitrator of its choice within
thirty (30) days of the submission of a notice of arbitration and (ii) the
party-appointed arbitrators shall in turn appoint a presiding arbitrator of
the tribunal within thirty (30) days following the appointment of the last
party-appointed arbitrator. If (x) the parties cannot agree on the sole
arbitrator, (y) one party refuses to appoint its party-appointed arbitrator
within said thirty (30) day period or (z) the party-appointed arbitrators
cannot reach agreement on a presiding arbitrator of the tribunal, then the
appointing authority for the implementation of such procedure shall be the
Senior United States District Judge for the Northern District of Texas, who
shall appoint an independent arbitrator who does not have any financial
interest in the dispute, controversy or claim. If the Senior United States
District Judge for the Northern District of Texas refuses or fails to act
as the appointing authority within ninety (90) days after being requested
to do so, then the appointing authority shall be the Chief Executive
Officer of the American Arbitration Association, who shall appoint an
independent arbitrator who does not have any financial interest in the
dispute, controversy or claim. All decisions and awards by the arbitration
tribunal shall be made by majority vote.
(b) Proceedings. Unless otherwise expressly agreed in writing by the
-----------
parties to the arbitration proceedings:
14
(i) The arbitration proceedings shall be held in Dallas,
Texas, at a site chosen by mutual agreement of the parties, or if the
parties cannot reach agreement on a location within thirty (30) days
of the appointment of the last arbitrator, then at a site chosen by
the arbitrators;
(ii) The arbitrators shall be and remain at all times wholly
independent and impartial;
(iii) The arbitration proceedings shall be conducted in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, as amended from time to time;
(iv) Any procedural issues not determined under the arbitral
rules selected pursuant to item (iii) above shall be determined by
the law of the place of arbitration, other than those laws which
would refer the matter to another jurisdiction;
(v) The costs of the arbitration proceedings (including
attorneys' fees and costs) shall be borne in the manner determined by
the arbitrators;
(vi) The decision of the arbitrators shall be reduced to
writing; final and binding without the right of appeal; the sole and
exclusive remedy regarding any claims, counterclaims, issues or
accounting presented to the arbitrators; made and promptly paid in
United States dollars free of any deduction or offset; and any costs
or fees incident to enforcing the award shall, to the maximum extent
permitted by law, be charged against the party resisting such
enforcement;
(vii) The award shall include interest from the date of any
breach or violation of this Agreement, as determined by the arbitral
award, and from the date of the award until paid in full, at 6% per
annum; and
(viii) Judgment upon the award may be entered in any court having
jurisdiction over the person or the assets of the party owing the
judgment or application may be made to such court for a judicial
acceptance of the award and an order of enforcement, as the case may
be.
5.10 Survival. The covenants and agreements of the parties set forth in
--------
Article 2 (Non-Competition and Confidentiality), and Article 5 (Miscellaneous)
----------------------------------- -------------
are of a continuing nature and shall survive the expiration, termination or
cancellation of this Agreement, regardless of the reason therefor.
5.11 Subrogation. In the event of payment under this Agreement, Employer
-----------
and Parent shall be subrogated to the extent of such payment to all of the
rights of recovery of the Employee,
15
who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable Employer or Parent effectively to bring suit to enforce such
rights.
5.12 No Duplication of Payments. Employer and Parent shall not be liable
--------------------------
under this Agreement to make any payment in connection with any claim made
against the Employee to the extent the Employee has otherwise actually received
payment (under any insurance policy, Bylaw or otherwise) of the amounts
otherwise indemnifiable hereunder.
5.13 Binding Effect, Etc. This Agreement shall be binding upon and inure
-------------------
to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of Employer, Parent, spouses, heirs, and personal and legal
representatives. Employer and Parent shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all, or a substantial part, of their business or assets, by
written agreement in form and substance satisfactory to the Employee, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent that Employer or Parent would be required to perform if no such
succession had taken place.
5.14 Contribution. If the indemnity contained in this Agreement is
------------
unavailable or insufficient to hold the Employee harmless in a Claim for an
Indemnifiable Event, then separate from and in addition to the indemnity
provided elsewhere herein, Parent shall contribute to Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by or on behalf of the Employee in connection with such Claim in such proportion
as appropriately reflects the relative benefits received by, and fault of,
Parent on the one hand and the Employee on the other in the acts, transactions
or matters to which the Claim relates and other equitable considerations.
5.15 Parent Guaranty. Parent guarantees the payment and performance of all
---------------
obligations of Employer under this Agreement and agrees it will pay or perform
those obligations if for any reason Employer fails to do so. This guarantee is
absolute, continuing, irrevocable and not conditional or contingent. Any notice
given hereunder to either Employer or Parent will be deemed to be notice to
Parent for purposes of this guaranty.
***********
[Remainder of intentionally left blank.]
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IN WITNESS WHEREOF, Employer and Parent have caused this Agreement to be
executed by their officer/general partner thereunto duly authorized, and
Employee has signed this Agreement, as of the date first set forth above.
CELLSTAR LTD
By: National Auto Center, Inc.
General Partner
By: /s/ XXXXX X. XXXXXX
--------------------------------
Xxxxx X. Xxxxxx
Chief Executive Officer
CELLSTAR CORPORATION
By: /s/ XXXXX X. XXXXXX
--------------------------------
Xxxxx X. Xxxxxx
Chief Executive Officer
/s/ XXXXXX X. XXXXXX
------------------------------------
Xxxxxx Xxxxxx
17
