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EXHIBIT 10.36
BRIGHTPOINT, INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
July 16, 1998
Xx. Xxxxxx X. Xxxxx
Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
RE: EMPLOYMENT AGREEMENT DATED AS OF JANUARY 6, 1997 BETWEEN
BRIGHTPOINT, INC. (THE "EMPLOYER" OR "COMPANY") AND XXXXXX X.
XXXXX (THE "EMPLOYEE")
Dear Xx. Xxxxx:
The purpose of this letter is to clarify and amend the Agreement
and to provide consistency in the employment terms of senior management of the
Company. All capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Agreement.
1. Section 1 is hereby amended to provide that the Effective
Date (as such term is defined in such agreement) shall be the date of this
amendment letter.
2. Section 6.4.2(a) is amended by adding the following
language at the end of the provision:
"; provided, however, that no Change of Control shall be deemed to
have occurred for purposes of this Agreement if such person or
entity acquires 15% or more of the voting securities of the
Employer (a) as a result of a combination of the Employer or a
wholly-owned subsidiary of Employer with another entity owned or
controlled by such persons or entity (whether effected by a
merger, sale of assets or exchange of stock or otherwise) (the
"Combination") and (b) after completion of the Combination and for
a period of not less than twelve (12) months thereafter (i)
executive officers of the Employer (as designated in the
Employer's most recent Annual Report on Form 10-K or its most
recent Proxy Statement filed with the Securities and Exchange
Commission with respect to its Annual Meeting of Stockholders)
immediately prior to
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the Combination constitute not less than 50% of the executive
officers of the Employer after the Combination or (ii) the members
of the Board of Directors of Employer immediately prior to the
Combination constitute not less than 50% of the membership of the
Board of Directors of the Employer after the Combination. For
purposes of calculating the executive officers of the Employer
after the Combination, those executive officers who are terminated
by the Employer for Cause or who terminate their employment
without Good Reason shall be excluded from the calculation
entirely."
3. Section 9(d)(ii) is hereby amended by deleting subsection
(A) in its entirety and replacing it with the following subsections:
(A) if the Employee, without Good Reason, terminates his
employment at any time within twelve months after a Change of Control, or if,
prior to and not as a result of a Change of Control, the Employee's employment
is terminated either by the Employee for Good Reason or by the Employer other
than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the
highest of (a) $450,000 or (b) total compensation (including the value of all
perquisites, such as health and life insurance and car allowance, etc.) received
or earned by the Employee from the Employer during the twelve months prior to
the Termination Date, multiplied by three (3), or
(B) if after or as a result of a Change of Control, the
Employee's employment is terminated either by the Employee for Good Reason or by
the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to three (3) times the total compensation received or earned
(including the value of all perquisites, such as health and life insurance and
car allowance, etc.) and the value of all stock options granted to the Employee
by the Employer during the twelve (12) months prior to such Date of Termination
(in case of either (ii)(A) or (ii)(B), "Severance Pay"), and "
4. A new Section 9(d)(iv) is added, reading as follows:
"(iv) The value of the stock options described above will be
determined using a Black-Scholes valuation methodology by an
investment bank reasonably acceptable to both Company and
Employee. The fees for such valuation will be paid by the
Company".
5. A new Section 9(h) is added, reading as follows:
"(h) (A) Upon the occurrence of a Change of Control,
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(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
agreement between Employer and Employee, all unvested stock
options granted by the Employer to the Employee pursuant to
such agreement shall immediately vest and become
exercisable."
Except as set forth herein, the Employment Agreement remains
in full force and effect. Please confirm your agreement to the foregoing by
executing the enclosed copy of this letter where indicated.
Very truly yours,
BRIGHTPOINT, INC.
By: /s/ J. Xxxx Xxxxxx
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Name: J. Xxxx Xxxxxx
Title: President
Date: July 16, 1998
Agreed and Accepted By:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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