EMPLOYMENT AGREEMENT
Exhibit 10.3
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of the 17th day of
January, 2011, by and between Brightpoint, Inc. (“Company”) and Xxxxx X. Xxxxxxxxx (“Executive”).
WHEREAS, the Executive is currently employed by the Company as its Vice President, Assistant
General Counsel and Assistant Secretary and has performed valuable services for the Company; and
WHEREAS, the Company has offered to appoint the Executive to the position of Executive Vice
President, General Counsel and Secretary and it desires to enter into this Agreement with him in
order to set forth the terms and conditions of his employment in such position; and
WHEREAS, the Executive accepts the appointment to the aforesaid position subject to the terms
and conditions set forth in this Agreement; and
WHEREAS, the parties acknowledge that the Executive shall be formally designated as Executive
Vice President, General Counsel and Secretary effective as of March 1, 2011 or effective as of such
other date as mutually agreed by the parties (“Effective Date”) and he shall commence his duties
and responsibilities in that position on the Effective Date subject to the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
and intending to be legally bound hereby, the Company and the Executive hereby agree as follows:
1. Term.
The term of this Agreement (“Term”) shall be for three (3) years from the Effective Date.
Such period is referred to herein as the “Initial Term”. For purposes of this Agreement,
“Employment Year” means the twelve (12) month period that commences on the Effective Date or the
anniversary thereof. After the Initial Term, this Agreement shall be renewed automatically for
successive twelve (12) month periods (each such period is referred to herein as a “Renewal Term”).
Either party may terminate this Agreement at the end of the Initial Term or any Renewal Term on the
condition that it provides written notice of non-renewal to the other party at least ninety (90)
days prior to the expiration of the Initial Term or any Renewal Term.
2. Executive’s Duties.
2.1 During the Term, the Executive shall have the title of Executive Vice President, General
Counsel and Secretary, and he shall have the duties and responsibilities as set forth in
Exhibit A, attached hereto and incorporated herein. The Executive shall report directly to
the Chief Executive Officer of the Company (or his designee) and the Board of Directors of the
Company (“Board”).
2.2 The Executive shall devote substantially all of his business time, attention, knowledge,
and skills faithfully, diligently, and to the best of his abilities, in furtherance of the business
and activities of the Company. The principal place of performance by the Executive of his duties
hereunder shall be the Company’s principal executive offices, although the Executive may be
required to travel outside of the area where the Company’s principal executive offices are located
in connection with the business of the Company. Notwithstanding the foregoing, nothing in this
Agreement shall preclude the Executive from devoting reasonable periods of time required of him to
serve as a director of any organization or corporation involving no conflict of interest with the
interests of the Company and with the written consent of the Company, which consent shall not be
unreasonably withheld, on the condition that such activities do not materially interfere with the
due performance of his duties and responsibilities under this Agreement as determined by the Chief
Executive Officer of the Company.
3. Compensation.
3.1 During the term of this Agreement, the Company shall pay the Executive a salary (“Salary”)
at an initial rate of Three Hundred Twenty Five Thousand Dollars ($325,000.00) per annum in respect
to each Employment Year, prorated for any partial Employment Year. The Salary shall be 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 Company and the Executive. The Salary may be increased from time to time
at the discretion of the Board or its Compensation and Human Resources Committee (“Compensation
Committee”). All payments described herein shall be subject to all required tax and other
withholdings.
3.2 In addition to the foregoing, the Executive shall be entitled to such other cash bonuses
and such other compensation in the form of stock, stock options or other property or rights as may
from time to time be awarded to him by the Board or the Compensation Committee during or in respect
of his employment hereunder.
3.3 Beginning with the Company’s calendar year commencing January 1, 2011, the Executive shall
be eligible for an annual cash bonus on the terms and conditions set forth in the Company’s Annual
Executive Cash Bonus Program, which may be modified or amended from time to time by the
Compensation Committee, at an initial target amount of 50% of the Executive’s Salary. In addition,
the Executive shall participate in the Company’s annual incentive-based Executive Equity Program,
which may be modified or amended from time to time, at an initial participation rate of 100% of the
Executive’s Salary. The decision as to whether the Executive shall receive any or all of the
potential bonus or earn the equity grant under the above-described program shall be determined by
the Compensation Committee in its sole discretion, based on factors it deems appropriate which may
include, but not be limited to, its determination as to whether specific goals were achieved.
3.4 Executive will receive a grant of 25,000 Restricted Stock Units (“RSUs”), half of which
(12,500) will vest on the second anniversary of the date of the grant and half of which (12,500)
will vest on the third anniversary of the date of the grant.
4. Benefits.
4.1 During the term of this Agreement, the Executive shall have the right to receive or
participate in all existing and future benefits and plans which the Company may from time to time
institute during such period for its executive officers (“Executive Officers”) and for which the
Executive is eligible in accordance with the terms and conditions of such benefits and plans.
Nothing paid to the Executive under any plan or arrangement presently in effect or made available
in the future shall be deemed to be in lieu of the Salary or any other obligation payable to the
Executive pursuant to this Agreement.
4.2 During the term of this Agreement, the Executive will be entitled to the number of paid
holidays, personal days off, paid vacation days and sick leave days in each calendar year as are
determined by the Company from time to time, and consistent with its human resources policies.
Such paid vacation may be taken in the Executive’s discretion with the prior approval of the
Company, and at such time or times as are not inconsistent with the reasonable business needs of
the Company.
5. Travel Expenses. All travel and other expenses incident to the rendering of services
reasonably incurred on behalf of the Company by the Executive during the term of this Agreement
shall be paid by the Company provided that such expenses are incurred and that reimbursement is
sought by the Executive in accordance with the Company’s policies. If any such expenses are paid
in the first instance by the Executive, the Company shall reimburse him therefor on presentation of
appropriate receipts for any such expenses.
6. Termination. Executive’s employment under this Agreement may be terminated by the
Company or the Executive without any breach of this Agreement only on the following circumstances:
6.1 Death. The Executive’s employment under this Agreement shall terminate upon his
death.
6.2 Disability. If, as a result of the Executive’s incapacity due to physical or
mental illness, the Executive shall have been absent from his duties under this Agreement for 90
consecutive calendar days, the Company may terminate the Executive’s employment with written notice
under this Agreement, subject to, in accordance with and consistent with applicable law.
6.3 Cause. The Company may terminate the Executive’s employment under this Agreement
for Cause. For purposes of this Agreement, “Cause” shall mean: (i) the commission of an act or acts
of dishonesty, fraud or breach of trust by the Executive relating to his material duties or
employment with the Company or breach of fiduciary duty owed to the Company or any of its
affiliates; (ii) the Executive’s criminal conduct, willful misconduct, act of moral turpitude, or
gross negligence that is injurious to the Company, either financially or in reputation; (iii) the
Executive’s conviction of, or plea of guilty or nolo contendere to, a felony; (iv) failure of the
Executive to substantially perform his material duties and responsibilities hereunder or to satisfy
his obligations as an officer or executive of the Company, which failure has not begun to be cured
by Executive within seven (7) days after written notice thereof to the Executive from
the Company (and which is not cured within thirty (30) days after written notice thereof to
the Executive from the Company); (v) material breach of any term or condition of this Agreement by
the Executive, which breach has not begun to be cured by Executive within seven (7) days after
written notice thereof to the Executive from the Company (and which is not cured within thirty (30)
days after written notice thereof to the Executive from the Company); or (vi) the Executive’s
unlawful use (including being under the influence) or possession of controlled substances on the
Company’s premises or while performing the Executive’s duties and responsibilities under this
Agreement unless prescribed by a physician.
6.4 Termination by the Executive for Good Reason.
a. The Executive may terminate his employment under this Agreement for Good Reason (as
hereinafter defined).
b. For purposes of this of the Agreement, “Good Reason” shall mean: (i) any material
reduction, diminution or limitation of the powers and authority of the Executive in any
respect not contemplated by this Agreement; (ii) failure of the Company, after a Change of
Control (as defined in subsection c. below) to obtain the assumption of the agreement to
perform this Agreement by any successor as contemplated in Section 9.8 of this Agreement;
(iii) any material change in the geographic location in which the Executive is required to
work; or (iv) any other action or inaction that constitutes a material breach by the Company
under this Agreement. With respect to the matters set forth in this subsection b., the
Executive must give the Company at least thirty (30) days’ prior written notice of his
intent to terminate this Agreement for Good Reason before any such termination shall be
effective. In addition to the required contents of the notice as set forth in Section 7
below, any such written notice from the Executive shall also describe any measures that he
believes can be reasonably taken by the Company to cure the matter, and the Company shall
have thirty (30) days after its receipt of such written notice to cure the matter before the
Executive’s termination of his employment for Good Reason shall be effective.
c. For purposes of this Agreement, a “Change of Control” shall be deemed to occur, unless
previously consented to in writing by the Executive, upon: (i) individuals who, as of the
date hereof are members of the Board (the “Incumbent Board”) ceasing for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company’s shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs in connection with a Combination, as
defined below, or as a result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) or other actual or threatened solicitation of
proxies or consents by or on behalf of a person other than the Board; (ii) the acquisition
of beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange
Act) of 15% or more of the voting securities of the Company by any person, entity or group
(within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) not affiliated with the Executive or the Company;
provided, however, that no Change of Control shall be deemed to have
occurred for purposes of this Agreement if such person, entity or group acquires beneficial
ownership of 15% or more of the voting securities of the Company (A) as a result of a
combination of the Company or a wholly-owned subsidiary of the Company with such person,
entity or group or another entity owned or controlled by such person, entity or group
(whether effected by a merger, consolidation, sale of assets or exchange of stock or
otherwise) (a “Combination”) and (B) (x) Executive Officers of the Company (as designated by
the Board for purposes of Section 16 of the Exchange Act) immediately prior to the
Combination constitute not less than 50% of the Executive Officers of the Company for a
period of not less than six (6) months after the Combination (for purposes of calculating
the Executive Officers of the Company after the Combination, those Executive Officers who
are terminated by the Company for Cause or who terminate their employment without Good
Reason shall be excluded from the calculation entirely), and (y) the members of the
Incumbent Board immediately prior to the Combination constitute not less than 50% of the
membership of the Board after the Combination, and (z) after the Combination, more than 35%
of the voting securities of the Company is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the beneficial owners
of the outstanding voting securities of the Company immediately prior to the Combination, it
being understood that while the existence of a Change in Control pursuant to this Section
6.4(b) may not be ascertainable for six (6) months after the Combination, if it is
ultimately determined that such Combination constituted a Change in Control, the date of the
Change of Control shall be the effective date of the Combination; (iii) the commencement of
a proxy contest against the management for the election of a majority of the Board of the
Company if the group conducting the proxy contest owns, has or gains the power to vote at
least fifteen (15%) of the voting securities of the Company; (iv) the consummation of a
reorganization, merger or consolidation, or the sale, transfer or conveyance of all or
substantially all of the assets of the Company to any person or entity not affiliated with
the Executive or the Company unless, following such reorganization, merger, consolidation,
sale, transfer or conveyance, the conditions set forth in clause (ii)(B) above are present;
or (v) the complete liquidation or dissolution of the Company.
6.5 Termination without Cause. The Company may terminate the Executive’s employment
under this Agreement without Cause.
6.6 Termination without Good Reason. In addition to the Executive’s right to
terminate the Executive’s employment for Good Reason or Upon a Change of Control, he may
terminate his employment under this Agreement without Good Reason.
7. Notice of Termination. Any termination of the Executive’s employment by the Company or
by the Executive (other than termination by reason of the Executive’s death) shall be communicated
by a written Notice of Termination to the other party of this Agreement and signed by or on behalf
of a duly authorized representative of the party issuing such notice. For purposes of this
Agreement, a “Notice of Termination” shall mean a notice that shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated; provided, however, that the failure to
indicate any specific termination provision in such notice shall not constitute a waiver of such
provision.
8. Date of Termination. The “Date of Termination” shall mean: (a) if the Executive’s
employment is terminated by reason of his death, the date of his death; (b) if the Executive’s
employment is terminated pursuant to Section 6.2 above, the date on which the Notice of Termination
is given subject to, in accordance with and consistent with applicable law; (c) if the Executive’s
employment is terminated pursuant to Section 6.3 above, the date specified on the Notice of
Termination after the expiration of any cure periods; or (d) if the Executive’s employment is
terminated for any other reason, the date on which the terminating party provides the other party
with a Notice of Termination after the expiration of any applicable cure periods.
Notwithstanding the foregoing or anything stated or suggested in this Agreement to the contrary, no
Notice of Termination shall be deemed effective and the Executive shall not be deemed to have been
terminated for Cause or without Cause (except in the case of termination pursuant to death or
disability pursuant to Sections 6.1 or 6.2) unless and until there shall have been delivered to the
Executive a copy of a resolution, duly adopted by the affirmative vote of not less than a majority
of the entire membership of the Board at a duly commissioned meeting called and held for such
purpose (after reasonable written notice to the Executive and an opportunity for him, together with
his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board,
the Executive engaged in proscribed conduct set forth above in Section 6.3 or approving the Chief
Executive Officer’s recommendation to the Board to terminate the employment of the Executive
without Cause pursuant to Section 6.5, as applicable, and in either event specifying the
particulars thereof in detail.
9. Compensation Upon Termination.
9.1 Death. If the Executive’s employment shall be terminated by reason of his death,
the Company shall promptly pay to such person as he shall designate in writing filed with the
Company, or if no such person shall be designated, to his estate as a lump sum benefit, his full
Salary to the date of his death in addition to any payments the Executive’s spouse, beneficiaries
or estate may be entitled to receive pursuant to any pension or Executive benefit plan or life
insurance policy or similar plan or policy then maintained by the Company, and such payments
shall, assuming the Company is in compliance with the provisions of this Agreement, fully discharge
the Company’s obligations with respect to this Agreement, other than in regard to the Company’s
obligation to indemnify the Executive pursuant to Section 11 (Indemnification) or any
similar indemnification obligation provided in any separate agreement between the parties, if any,
at law or in the Company’s Articles of Incorporation or Bylaws, which shall apply with respect to
any matters attributable to his employment by the Company, without regard to when asserted (all of
the foregoing indemnification obligations of the Company are collectively referred to hereinafter
as “the Company’s Indemnification Obligation.”)
9.2 Disability. During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the Executive shall continue
to receive his Salary until the Executive’s employment is terminated pursuant to Section 6.2
(Disability) of this Agreement and the Company shall have no further obligations with
respect to Section 3 of this Agreement, and, assuming the Company is in compliance with the
provisions of
this Agreement, this shall fully discharge the Company’s obligations to the Executive with
respect to this Agreement, other than in regard to the Company’s Indemnification Obligation.
9.3 Termination by Company for Cause or by Executive without Good Reason. If the
Executive’s employment shall be terminated by the Company pursuant to Section 6.3 (Cause)
or if he terminates his employment pursuant to Section 6.6 (Termination without Good
Reason), the Company shall pay the Executive his full Salary through the Date of Termination,
at the rate in effect at the time Notice of Termination is given, and assuming the Company is in
compliance with the provisions of this Agreement, this shall fully discharge the Company’s
obligations to the Executive with respect to this Agreement, other than in regard to the Company’s
Indemnification Obligation.
9.4 Termination by Company without Cause On or Before December 31, 2011. If the
Company terminates the Executive’s employment without Cause pursuant to Section 6.5
(Termination without Cause) on or before December 31, 2011, then: (a) the Company shall pay
his full Salary through the Date of Termination at the rate in effect at the time Notice of
Termination is given and the unpaid bonus, if any, earned through the Date of Termination; (b) the
Company shall pay to the Executive a lump sum payment equal to Six Hundred Thousand Dollars
($600,000), less applicable taxes and other withholdings; and (c) the Executive shall be entitled
to immediate vesting of options and RSUs in accordance with Section 9.9 (Immediate
Vesting). Assuming the Company is in compliance with the provisions of this Agreement, the
making of these payments and vesting of options and RSUs shall be in lieu of any further
obligations to the Executive, and shall fully discharge the Company’s obligations to the Executive
with respect to this Agreement, other than in regard to the Company’s Indemnification Obligation.
9.5 Termination by Company without Cause after December 31, 2011. If the Company
terminates the Executive’s employment without Cause pursuant to Section 6.5 (Termination
without Cause) after December 31, 2011, then: (a) the Company shall pay to the Executive his
full Salary through the Date of Termination at the rate in effect at the time Notice of Termination
is given and the unpaid bonus, if any, earned through the Date of Termination; (b) for periods
subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of
this Agreement), Non-Cause Severance Pay (as hereinafter defined), payable on the tenth day
following the Date of Termination; and (c) the Executive shall be entitled to immediate vesting of
options and RSUs in accordance with Section 9.9 (Immediate Vesting). As used herein,
“Non-Cause Severance Pay” shall mean the lesser of: (x) an amount equivalent to the Cash
Compensation, defined as Salary and the bonus opportunity consisting of those additional
compensation opportunities described in Sections 3.2 and 3.3 that would be paid to Executive during
the remaining Term of this Agreement (such amount will not be, in the aggregate, less than an
amount equivalent to one (1) year of the Executive’s Salary and bonus opportunity in effect on the
Date of Termination); or (y) One Million Dollars ($1,000,000). Assuming the Company is in
compliance with the provisions of this Agreement, the making of these payments and vesting of
options and RSUs shall be in lieu of any further obligations to the Executive, and shall fully
discharge the Company’s obligations to the Executive with respect to this Agreement, other than in
regard to the Company’s Indemnification Obligation.
9.6 Termination by Executive for Good Reason. If the Executive shall terminate his
employment pursuant to Section 6.4 (Termination by the Executive for Good Reason), then the
Company shall make the same payment and in the same manner as described in Section 9.5 above.
Assuming the Company is in compliance with the provisions of this Agreement, the making of the
payments and vesting of options and RSUs, as provided in Section 9.5, shall be in lieu of any
further obligations to the Executive, and shall fully discharge the Company’s obligations to the
Executive with respect to this Agreement, other than in regard to the Company’s Indemnification
Obligation.
9.7 Separation and General Release Agreement. The Executive shall, as a condition to
receiving any amounts and immediate vesting under Sections 9.4, 9.5, 9.6, or 9.9, execute a
separation and general release agreement in a form reasonably satisfactory to the Company.
However, such general release agreement shall not release the Company from the payment or vesting
obligations with respect to Sections 9.4, 9.5, 9.6, or 9.9 hereunder, as applicable, nor shall the
Company be released from the Company Indemnification Obligation.
9.8 Change of Control. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance satisfactory to the
Executive, to expressly assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such Agreement prior to the effectiveness of any such succession
shall be considered “Good Reason” pursuant to Section 6.4(a) of this Agreement. As used in this
Agreement, “Company” shall mean the Company and any successor to its business and/or assets which
executes the Agreement or which otherwise becomes bound by the terms and conditions of this
Agreement by operation of law.
9.9 Immediate Vesting. In the event of the Company’s termination of the Executive
without Cause or the Executive’s termination for Good Reason, then notwithstanding the vesting
terms and conditions of any RSU or restricted stock award agreement or plan relating to an annual
stock option, RSU or restricted stock award to the Executive, all then unvested: (i) shares; (ii)
RSUs; and (iii) other stock-based awards shall immediately vest in accordance with the applicable
RSU, stock award, or other plan.
10. Confidentiality; Noncompetition.
10.1 The Company and the Executive acknowledge that the services to be performed by the
Executive under this Agreement are unique and extraordinary and, as a result of such employment,
the Executive will be in possession of confidential information relating to the business practices
of the Company. 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 Executive 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 the Executive’s
breach of the provisions of this Section 10.1, including, but not limited to, information relating
to: trade secrets (as defined for purposes of Indiana law), personnel lists, financial information,
research projects, services used, pricing, customers,
customer lists and prospects, product sourcing, marketing and selling and servicing. The
Executive agrees that he will not, during and after the termination of his 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 Executive during his employment by Company, without the prior consent of the
Company.
10.2 The Executive 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, within any county
(or adjacent county) in any State within the United States or territory outside the United States
in which the Company is engaged in business during the period of the Executive’s employment or on
the date of termination of the Executive’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, Executive, consultant or otherwise) competitive with the Company’s
principal business activities. Notwithstanding the foregoing, Executive shall be permitted to own
(as a passive investment) not more than five percent (5%) of any class of securities which is
publicly traded; provided, however that such five percent (5%) limitation shall
apply to the aggregate holdings of Executive and those of all other persons and entities with whom
Executive has agreed to act for the purpose of acquiring, holding, voting or disposing of such
securities.
10.3 The Executive 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 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 Executive directly or indirectly, disparage the commercial, business or financial
reputation of the Company.
10.4 For purposes of clarification, but not of limitation, the Executive hereby acknowledges
and agrees that the provisions of Sections 10.2 and 10.3 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,
executive, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted
by either a representative of the Company, including the Executive (but only those existing during
the time of the Executive’s employment by the Company, or at the termination of his employment), to
discontinue or alter his, her or its relationship with the Company.
10.5 Upon the termination of the Executive’s employment for any reason whatsoever, 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 Executive, including all copies thereof, shall be
promptly returned to the Company.
10.6 After the Executive’s employment terminates and for a period of one (1) year thereafter,
he shall provide such assistance as may be reasonably requested by the Company in
order to assist the Company in transitioning his duties and responsibilities to his successor
or to others. This assistance shall not require the Executive to expend more than four (4) hours
per month.
10.7 Inventions.
(a) The Executive 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 Company shall belong to the
Company, provided that such Inventions grew out of the Executive’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
Executive shall further: (i) promptly disclose such Inventions to the Company; (ii) assign to the
Company, without additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (iii) sign all papers necessary to carry out the foregoing;
and (iv) give testimony in support of his inventorship;
(b) If any Invention is described in a patent application or is disclosed to third parties,
directly or indirectly, by the Executive within two (2) years after the termination of his
employment with the Company, it is to be presumed that the Invention was conceived or made during
the period of the Executive’s employment by the Company, unless such Invention is entirely
unrelated to the Company’s business directly or indirectly; and
(c) The Executive 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.
10.8 The Company shall be the sole owner of all products and proceeds of the Executive’s
services hereunder, including, but not limited to, all materials, ideas, concepts, formats,
suggestions, developments, arrangements, packages, programs and other intellectual properties that
the Executive may acquire, obtain, develop or create in connection with and during the term of the
Executive’s employment hereunder, free and clear of any claims by the Executive (or anyone claiming
under the Executive) of any kind or character whatsoever (other than the Executive’s right to
receive payments hereunder). The Executive 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.
10.9 The parties hereto hereby acknowledge and agree that (i) the Company might be irreparably
injured in the event of a breach by the Executive of any of his obligations under this Section 10;
(ii) monetary damages might not be an adequate remedy for any such breach; and (iii) the Company
shall be entitled to seek injunctive relief, in addition to any other remedy which it may have, in
the event of any such breach.
10.10 The parties hereto hereby acknowledge that, in addition to any other remedies the
Company may have under Section 10.9 hereof, the Company shall have the right and remedy to
require the Executive 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 Executive as the result of any transactions constituting a breach of any of the provisions of
Section 10.7 (Inventions), and the Executive hereby agrees to account for and pay over such
Benefits to the Company.
10.11 Each of the rights and remedies enumerated in Sections 10.9 and 10.10 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.
10.12 If any provision contained in this Section 10 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.
10.13 If any provision contained in this Section 10 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.
10.14 It is the intent of the parties hereto that the covenants contained in this Section 10
shall be enforced to the fullest extent permissible under the laws and public policies of each
jurisdiction in which enforcement is sought (the Executive hereby acknowledging that such
restrictions are reasonably necessary for the protection of the Company). Accordingly, it is
hereby agreed that if any of the provisions of this Section 10 shall be adjudicated to be invalid
or unenforceable for any reason whatsoever, such provision shall be (only with respect to the
operation thereof in the particular jurisdiction in which such adjudication is made) construed by
limiting and reducing it so as to be enforceable to the extent permissible, without invalidating
the remaining provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
11. Indemnification. The Company shall indemnify, defend, and hold harmless the Executive
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, or (b) any claim asserted or
threatened against him, in either case by reason of or relating to his being or having been an
employee, Executive, officer or director of the Company, whether or not he continues to be such an
employee, Executive, officer or director at the time of incurring such expenses, except insofar as
such indemnification is prohibited by law. Such expenses shall include, without limitation, the
reasonable fees and disbursements of attorneys, amounts of judgments, and amounts of any
settlements, provided that such settlements are agreed to in advance by the Company.
12. Compliance with Code Section 409A.
12.1 It is intended that any amounts payable under this Employment Agreement and the Company’s
and the Executive’s exercise of authority or discretion hereunder shall comply with Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”), including
the Treasury regulations and other published guidance relating thereto, so as not to subject
the Executive to the payment of any interest or additional tax imposed under Code Section 409A. To
the extent any amount payable to the Executive from the Company, per this Employment Agreement or
otherwise, would trigger the additional tax imposed by Code Section 409A, the payment arrangements
shall be modified to avoid such additional tax. Notwithstanding any provision in the Employment
Agreement to the contrary, as needed to comply with Code Section 409A, payments due under this
Agreement shall be subject to a six (6) month delay such that amounts otherwise payable during the
six (6) month period following the Executive’s separation from service shall be accumulated and
paid in a lump-sum catch-up payment as of the first day of the seventh-month following separation
from service, as defined under Code Section 409A.
12.2 The Company shall pay in full any Delayed Payment in accordance with Section 12.1 and
shall not deduct from or setoff against any Delayed Payment (i) any compensation earned by the
Executive as the result of employment by another Company or business or profits earned by the
Executive from any other source at any time before and after the Date of Termination, or (ii) any
other amounts actually owed or claimed by the Company to be owed by the Executive to the Company in
connection with any claim the Company has or makes against the Executive.
13. General. This Agreement is further governed by the following provisions:
13.1 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 (1)
business day after being sent by telecopy or five (5) days after being mailed.
| To the Company: | Brightpoint, Inc. | |||
| 0000 Xxxxxxxxxxx Xxx, Xxxxx 000 | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: Chief Executive Officer | ||||
| To the Executive: | Xxxxx X. Xxxxxxxxx | |||
| 0000 X. Xxxxxxxxxx Xxxx. | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 |
13.2 Parties in Interest. Executive may not delegate his duties or assign his rights
hereunder without the prior written consent of the Company. 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.
13.3 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 Executive by
the Company and contains all of the covenants and agreements between the parties with respect to
such employment in any manner whatsoever. Any modification of this Agreement will be effective only
if it is in writing and signed by the Executive and the Company’s Chief Executive Officer.
13.4 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Indiana. Each party agrees to and hereby does submit to jurisdiction
before any state or Federal court of record in Xxxxxx County, Indiana.
13.5 Warranty. Executive hereby warrants and represents that Executive has ideas,
information and know-how relating to the type of business conducted by Company, and to the
Executive’s knowledge, disclosure of such ideas, information and know-how to Company will not
conflict with or violate the rights of any third party.
13.6 Noncontravention. Each party represents and warrants to the other party that the
execution of this Agreement, the appointments contemplated herein and the performance of the
obligations set forth herein will not constitute a breach of or conflict with any other written or
verbal contract, agreement or understanding to which he or it is subject or bound.
13.7 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.
13.8 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 (1) 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 as of the
date first above written.
| /s/ Xxxxx X. Xxxxxxxxx | ||||
|
Xxxxx X. Xxxxxxxxx |
||||
| Date: | January 18, 2011 | |||
| Brightpoint, Inc.: | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, Chairman of the Board and | ||||
| Chief Executive Officer | ||||
| Date: | January 18, 2011 | |||
Exhibit A
DUTIES AND RESPONSIBILITIES
For purposes of this Agreement, the Executive’s duties and responsibilities shall consist of legal
representation of the Company, affiliates and subsidiaries it controls, and, as appropriate, their
respective successors and assigns, in the following matters, and other duties assigned to the
Executive consistent with his skills, experience, and position:
Outside Counsel and Agencies: Approve and appoint outside counsel to represent the Company
in any and all legal matters. Represent the Company in dealings with outside law firms, government
representatives and agencies, independent legal experts and others in the legal profession.
Records: Maintain the corporate minute books and legal records of the Company and
affiliates it controls.
Corporate Strategies, Policies, Procedures and Programs: Assist in the definition and
development of corporate strategies, policies, procedures and programs. Provide counsel and
guidance on legal implications of all matters to the Board of Directors and members of executive
management of the Company. As requested, assist executive management of the Company in conversion
of Company strategies and policies into specific objectives and monitoring the accomplishment of
such objectives.
Legal Issues: Reconcile and determine the legal position of the Company in major legal
matters. Review, evaluate and analyze other obligations of the Company, and advise the Company
regarding legal issues and risks associated with contracts and obligations prior to the Company
becoming a party or otherwise becoming legally bound. Assess the merits of potential litigation,
lawsuits, and other legal claims and actions filed against the Company and approve settlements in
such matters.
Budget: Determine the budget for the Legal Department and monitor the administration of
the current budget.
Special Projects: Undertake special projects as assigned by the Company’s Board of
Directors or Chief Executive Officer (or his designee) dependent upon knowledge or experience.
Clients: Advise internal clients, in keeping with the Company’s values, strategies goals
and policies, with respect to all legal aspects of matter management.
