EXHIBIT 10.9
BRIGHTPOINT, INC.
RESTRICTED STOCK AWARD AGREEMENT
PURSUANT TO THE 2004 LONG-TERM INCENTIVE PLAN OF BRIGHTPOINT, INC.
THIS AGREEMENT (the "Agreement") is made effective as of the 7th day of
April, 2005 (the "Grant Date"), between Brightpoint, Inc., an Indiana
corporation (the "Company"), and Xxxxxx X. Xxxxx (the "Participant").
R E C I T A L S :
WHEREAS, upon the recommendation of the Compensation and Human Resources
Committee (the "Committee") of the Board of Directors of the Company (the
"Board"), the Board has determined that it would be in the best interests of the
Company and its stockholders to grant the Restricted Stock under the
Brightpoint, Inc. 2004 Long-Term Incentive Plan (the "Plan") provided for herein
(the "Award") to the Participant in order to provide an incentive to the
Participant to put forth maximum efforts toward the growth, profitability, and
success of the Company and its subsidiaries, to assist in aligning the interests
of the Participant with the interests of the stockholders of the Company and to
retain the Participant as an employee of the Company.
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Grant of the Restricted Stock Award. Subject to the terms and
conditions set forth in this Agreement and the Plan, the Company hereby grants
to the Participant an Award consisting of 50,000 shares (each, a "Share") of
Restricted Stock of the Company, $0.01 par value per share ("Stock"), subject to
adjustment as set forth in Section 17 of the Plan. Any capitalized terms not
defined herein shall have the same meaning as in the Plan. Each Share shall vest
and become unrestricted in accordance with Section 2 hereof and otherwise as set
forth in the Plan.
2. Vesting.
(a) The Award shall vest and become unrestricted as follows: (i)
with respect to 16,667 Shares on the third anniversary of the Grant Date, an
additional 16,667 Shares on the fifth anniversary of the Grant Date, and the
remaining 16,666 Shares on the eighth anniversary of the Grant Date, or (ii)
earlier pursuant to Section 2(b), (c) or (d) below (as applicable). For purposes
of this Agreement, the term "Vesting Date" means each of the third, fifth and
eighth anniversaries of the Grant Date.
(b) Upon a Change of Control (as defined in either the Participant's
Amended and Restated Employment Agreement with the Company dated as of July 1,
1999, as thereafter amended (the "Employment Agreement") or the Plan) any
then-unvested Shares shall immediately vest and become unrestricted.
(c) If the Participant's employment with the Company is terminated
(i) by the Company without Cause (as defined in the Employment Agreement) (and
other than due to
Participant's death or disability (as such term is used in Section 6.2 of the
Employment Agreement)) or (ii) by the Participant for Good Reason (as defined in
the Employment Agreement) then any Shares unvested on the Date of Termination
(as defined in the Employment Agreement) shall immediately vest and become
unrestricted.
(d) If the Participant's employment with the Company is terminated
(i) due to the Participant's death or (ii) by the Company due to the
Participant's disability (as such term is used in Section 6.2 of the Employment
Agreement) then the number of Shares that would have vested on the Vesting Date
that next follows the Participant's Date of Termination shall, on the Date of
Termination, immediately vest and become unrestricted.
(e) If the Participant's employment with the Company terminates for
any reason other than as provided in Sections 2(c) and (d), the portion of the
Award which is not vested as of the Date of Termination shall be forfeited by
the Participant and such portion shall be cancelled by the Company. The
Participant irrevocably grants to the Company the power of attorney to transfer
any unvested Shares forfeited to the Company and agrees to execute any document
required by the Company in connection with such forfeiture and transfer.
3. Rights as a Stockholder. Except as otherwise expressly provided in this
Agreement or the Plan, the Participant shall have all of the rights of a
stockholder of the Company with respect to any unvested Shares.
4. No Right to Continued Employment. This Agreement shall not be construed
as giving the Participant the right to be retained in the employ of the Company.
5. Transferability. Shares subject to the Award and not then vested may
not be transferred by the Participant other than by will or the laws of descent
and distribution. Except to the extent permitted by the foregoing, the Shares
subject to the Award and not then vested may not be sold, transferred, assigned,
pledged, hypothecated, encumbered or otherwise disposed of (whether by operation
of law or otherwise) or be subject to execution, attachment or similar process.
Upon any attempt to so sell, transfer, assign, pledge, hypothecate or encumber,
or otherwise dispose of such shares, the Award shall immediately become null and
void.
6. Withholding. By accepting this Award, the Participant agrees to make
appropriate arrangements with the Company for the satisfaction of any applicable
federal, state or local income tax withholding requirements, including the
payment to the Company of all such taxes and requirements in connection with the
distribution or delivery of the Shares, or other settlement in respect of the
Shares, and the Company shall be authorized to take such action as may be
necessary as determined by the Company (including, without limitation,
withholding Shares otherwise deliverable to the Participant hereunder and/or
withholding amounts from any compensation or other amount owing from the Company
to the Participant) to satisfy all obligations for the payment of such taxes;
provided, however, that in no event shall the value of Shares so withheld by the
Company exceed the minimum withholding rates required by applicable statutes.
7. Compliance with Applicable Law. Prior to issuance and delivery of any
Shares, the Participant will make or enter into such written representations,
warranties and agreements as
the Committee may reasonably request in order to comply with applicable
securities laws or with this Agreement or the Plan. The Award is subject to the
condition that if the listing, registration or qualification of the Shares
subject to the Award upon any securities exchange or under any law or
regulation, or the consent or approval of any governmental body, or the taking
of any other action is necessary or desirable as a condition of, or in
connection with, the vesting or delivery of Shares hereunder, the Shares shall
not vest or be delivered, in whole or in part, unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained, free of any conditions not acceptable to the Company. The Company
agrees to use reasonable efforts to effect or obtain any such listing,
registration, qualification, consent or approval.
8. Notices. Any notice necessary under this Agreement shall be given by
registered or certified mail, return receipt requested, addressed to the Company
in care of its Secretary at the principal executive office of the Company and to
the Participant at the address appearing in the personnel records of the Company
for such Participant or to either party at such other address as either party
hereto may hereafter designate in writing to the other. Any such notice shall be
deemed given when mailed in accordance with the foregoing provisions.
9. Failure to Enforce Not a Waiver. The failure of the Company to enforce
at any time any provision of this Agreement shall in no way be construed to be a
waiver of such provision or of any other provision hereof.
10. Authority of Committee. The Committee shall have full authority to
interpret and construe the terms of this Agreement. The determination of the
Committee as to any such matter of interpretation or construction shall be
final, conclusive and binding.
11. Choice of Law. The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of Indiana without regard
to principles of conflicts of law.
12. Counterparts. This Agreement may be executed in two counterparts each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument. Any facsimile of this Agreement shall be considered
an original document.
13. Plan Controlling; Complete Agreement. This Award is made pursuant to
the Plan, the terms of which are incorporated herein by reference. The Plan,
this Agreement and those documents expressly referred to herein embody the
complete agreement and understanding among the parties and supersede and preempt
any prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
In the event of any conflict between the terms of the Plan and this Agreement,
the terms of the Plan shall prevail.
14. Successors and Assigns. This Agreement is intended to bind and inure
to the benefit of and be enforceable by the Participant, the Company and their
respective permitted successors and assigns (including personal representatives,
heirs and legatees), and is intended to bind all successors and assigns of the
respective parties, except that the Participant may not assign any of the
Participant's rights or obligations under this Agreement except to the extent
and in the manner expressly permitted hereby.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Participant has hereunto set his hand, effective as of the
Grant Date.
BRIGHTPOINT, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Its: Lead Independent Director
/s/ Xxxxxx X. Xxxxx
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Participant: Xxxxxx X. Xxxxx
