BRIGHTPOINT, INC. AMENDED AND RESTATED AGREEMENT FOR SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFIT
Exhibit
10.1
BRIGHTPOINT, INC.
AMENDED AND RESTATED
AGREEMENT FOR
SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFIT
AGREEMENT FOR
SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFIT
THIS AMENDED AND RESTATED AGREEMENT is entered into as of the 16th day of August 2011 by and
between Xxxxxx X. Xxxxxx (the “Executive”) and Brightpoint, Inc., an Indiana corporation (the
“Company”). This Agreement fully supercedes the prior Amended and Restated Agreement for
Supplemental Executive Retirement Benefit entered into by the parties on January 19, 2006,
effective on April 7, 2005.
1. Eligibility for Supplemental Retirement Benefit. In addition to any amounts that
may be payable to the Executive pursuant to any other compensation or benefit plan or program
maintained by the Company to which the Executive may be entitled, subject to Section 5 below, the
Company shall pay to the Executive beginning upon the later of his Date of Termination (as such
term is defined in that certain Amended and Restated Employment Agreement dated as of July 1, 1999
between the Executive and the Company, as it may be amended from time to time (the “Employment
Agreement”)) or his attainment of age 50 (the applicable date the “Payment Start Date”), an annual
amount (the “Supplemental Retirement Benefit”) calculated and paid pursuant to the provisions of
this Agreement including, but not limited to, the payment period described in Section 3 below.
2. Calculation of the Supplemental Retirement Benefit.
(a) Formula. The Supplemental Retirement Benefit shall equal the lesser of:
(i) $496,000, and
(ii) the product of (A) the Gross Benefit as defined in subsection 2(b) below,
multiplied by (B) the Early Commencement Percent defined in subsection 2(e) below.
(b) Gross Benefit. The Gross Benefit shall equal an annual payment equal to the
product of the Accrual Percentage (as calculated in accordance with subsection 2(c) below)
multiplied by the Final Average Earnings (as defined in subsection 2(d) below).
(c) Accrual Percentage. The Accrual Percentage shall equal the lesser of (A)
the sum of (i) through (v) below, and (B) 50%:
(i) 10%; plus
(ii) 2%, if the Executive is employed by the Company on June 30, 2005; plus
(iii) 4% for each full Year (as defined below) the Executive is employed by the Company
from July 1, 2005 through June 30, 2010; plus
(iv) 2% for each full Year the Executive is employed by the Company from July 1, 2010
through June 30, 2014; plus
(v) 1% for each full Year the Executive is employed by the Company thereafter.
For purposes of this Agreement, “Year” means the twelve-month period commencing each July 1 and
ending each June 30.
(d) Final Average Earnings. The Executive’s Final Average Earnings for purposes of
subsection 2(b) above shall equal the quotient of (i) the sum of (A) the Executive’s Annual Base
Salary (as defined below) for the 5 Years prior to the Executive’s Date of Termination plus
(B) the Executive’s target cash bonus with respect to the calendar year ending in each such Year
(notwithstanding when such bonus is paid or payable and specifically excluding any equity-based
awards), divided by (ii) 5. “Annual Base Salary” shall mean the base rate of cash
compensation payable by the Company to or for the benefit of the Executive for services rendered,
including base pay the Executive could have received in cash in lieu of deferrals pursuant to any
non-qualified deferred compensation plan or pursuant to any pre-tax contribution made on the
Executive’s behalf to any qualified plan maintained by the Company pursuant to a cash or deferred
arrangement (as defined under Section 401(k) of the Internal Revenue Code of 1986, as amended (the
“Code”)), under any cafeteria plan (as defined under Section 125 of the Code) or under a qualified
transportation fringe benefit (as defined under Section 132(f) of the Code).
(e) Early Commencement Percent. The Early Commencement Percent shall equal the result
of:
(i) 100%, less
(ii) the product of .25% for each full calendar month the Payment Start Date precedes
the calendar month in which occurs the Executive’s 62nd birthday (designed to be a 3%
discount for each full twelve-month period the Payment Start Date precedes the Executive’s
62nd birthday, with monthly pro-ration for any period of less than twelve months).
3. Form of Payment of Supplemental Retirement Benefit. The Supplemental Retirement
Benefit payable hereunder shall be paid for a ten-year period in an annual amount determined
pursuant to Section 2 above. Payment shall commence effective on the Payment Start Date, with
payments to be made monthly in arrears as of the first of each month. To the extent required for
compliance with the terms of Code Section 409A (including the Treasury regulations and other
published guidance relating thereto), payments shall not be made during a period immediately
following the Date of Termination (the “Delay Period”) and, on the first business day immediately
following the Delay Period (the “Catch-Up Payment Date”) the Executive shall receive a lump-sum
payment equal to the total of the payments that would have otherwise been made during the Delay
Period plus simple interest on each such payment for the period from the date such payment would
otherwise have been made to the Catch-Up Payment Date, with such interest at a rate equal to 1%
over the prime rate as published in The Wall Street
Journal (U.S. Edition) as of the Date of Termination or, if the Wall Street Journal is
not published on such date, the next following date that The Wall Street Journal is
published.
4. Survivor Benefit. If the Executive dies prior to his Payment Start Date, the
Executive’s Supplemental Retirement Benefit shall be calculated as of the date of the Executive’s
death (with such date the “Payment Start Date” for purposes of Section 2(e)) and paid to his Spouse
(as defined below) commencing no later than sixty (60) days after the Executive’s death with
payments to be made as set forth in Section 3 for the ten year period. If the Executive dies while
receiving the Supplemental Retirement Benefit, the Executive’s unpaid Supplemental Retirement
Benefit shall be paid to his Spouse commencing no later than sixty (60) days after the Executive’s
death with payments to be made as set forth in Section 3 for the remainder of the ten-year period.
“Spouse” shall mean the Executive’s legal spouse at the time of the Executive’s death and shall not
mean a former spouse. If the Executive does not have a Spouse at the time of his death, then no
Supplemental Retirement Benefit shall be paid for any days after the Executive’s death. If the
Spouse dies while receiving the Supplemental Retirement Benefit, then no Supplemental Retirement
Benefit shall be payable for any days after the date of the Spouse’s death.
5. Termination for Cause. If the Executive’s employment with the Company is
terminated by the Company for Cause (as such term is defined in the Employment Agreement), then the
Payment Start Date shall be the Executive’s 62nd birthday.
6. Withholding. All payments provided for in this Agreement shall be subject to
applicable withholding and other deductions as shall be required of the Company under any
applicable federal, state or local law.
7. Unsecured General Creditor. Nothing contained in this Agreement and no action
taken pursuant to its provisions by the Company or any person, shall create, nor be construed to
create, a trust of any kind or a fiduciary relationship between the Company and the Executive or
any other person. The payments to the Executive hereunder shall be made from assets which shall
continue, for all purposes, to be a part of the general, unrestricted assets of the Company. No
person shall have nor acquire any interest in any such assets by virtue of the provisions of this
Agreement. The Company’s obligation hereunder shall be an unfunded and unsecured promise to pay
money in the future. To the extent that the Executive acquires a right to receive payments from
the Company under the provisions hereof, such right shall be no greater than the right of any
unsecured general creditor of the Company.
8. General Provisions.
(a) Enforceability. To the extent not preempted by Federal law, the validity,
interpretation, construction and enforceability of this Agreement shall be governed by the internal
laws of the State of Indiana, without giving effect to any choice of law or conflict of law
provision or rule. The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
(b) Modification, Amendment, Waiver. No modification or amendment of any provision of
this Agreement shall be effective unless approved in writing by both parties. Either party’s
failure to insist upon strict compliance with any provision hereof shall not be deemed to be a
waiver of such provision or any other provision hereof.
(c) Headings. The heading and section or subsection designations of this Agreement
are included solely for convenience of reference and shall in no event be construed to define or
limit any provisions of this Agreement.
(d) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
document. Any facsimile of this Agreement shall be considered an original document.
(e) Successors. 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 succession had taken place.
(f) Code Section 409A.
(i) It is intended that this Agreement will comply with Code Section 409A, and any
regulations and guidelines issued thereunder, to the extent this Agreement is subject
thereto, and this Agreement shall be interpreted on a basis consistent with such intent.
(ii) As referenced in Section 3 and notwithstanding any provision to the contrary in
this Agreement, if the Executive is deemed on the date of his “separation from service”
(within the meaning of Treas. Reg. Section 1.409A-1(h)) to be a “specified employee” (within
the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment that is
required to be delayed pursuant to Code Section 409A(a)(2)(B) (the “Delayed Payments”), such
payment shall not be made prior to the earlier of (A) the expiration of the six (6) month
period measured from the date of his “separation from service” and (B) the date of his
death. Any payments due under this Agreement other than the Delayed Payments shall be paid
in accordance with the normal payment dates specified herein. In no case will the delay of
any of the Delayed Payments by the Company constitute a breach of the Company’s obligations
under this Agreement.
(iii) For all purposes under this Agreement, reference to the Executive’s “termination
of employment” or “Date of Termination” (and corollary terms) shall be construed to refer to
the Executive’s “separation from service” (as determined under Treas. Reg. Section
1.409A-1(h), as uniformly applied by the Company) with the Company.
(iv) For purposes of Code Section 409A, the Executive’s right to receive installment
payments pursuant to this Agreement shall be treated as a right to
receive a series of separate and distinct payments. Whenever a payment under this
Agreement specifies a payment period with reference to a number of days, the actual date of
payment within the specified period shall be within the sole discretion of the Company. Any
other provision of this Agreement to the contrary notwithstanding, in no event shall any
payment or benefit under this Agreement that constitutes nonqualified deferred compensation
for purposes of Code Section 409A be subject to offset by any other amount unless otherwise
permitted by Code Section 409A.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day and year first
written above.
| BRIGHTPOINT, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: Xxxxx X. Xxxxx | ||||
| Its: Lead Independent Director | ||||
| /s/ Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx | ||||
