EXHIBIT 10.1
SEPARATION AND GENERAL RELEASE AGREEMENT
1. Definitions. Specific terms used in this Separation and General Release
Agreement have the following meanings: (a) words such as "I" and "my" include
both the undersigned, Xxxxxxx X. Xxxxxxxx, and anyone who has or obtains any
legal right or claims through me; and (b) "Company" means Brightpoint, Inc.,
Brightpoint North America, Inc., Brightpoint North America L.P., all of their
past and present officers, directors, employees, trustees, agents, parent,
partners, shareholders, affiliates, principals, related corporations, insurers,
any and all employee benefit plans (and any fiduciary of such plans) sponsored
by the aforesaid entities, and each of them, and each entity's subsidiaries,
predecessors, successors, and assigns, none of whom admit any liability to me,
but all of whom expressly deny any such liability.
2. My Claims. The claims I am releasing ("My Claims") include all of my
rights to any relief of any kind from the Company, including without limitation,
all claims I have now, whether or not I now know about the claims, and including
without limitation: (a) all claims arising directly or indirectly out of or
relating to my employment with Company, or the termination of that employment,
including, but not limited to, any claims arising under the Fair Labor Standards
Act; Title VII of the Civil Rights Act of 1964; the Family and Medical Leave
Act; the Age Discrimination in Employment Act ("ADEA"); the Older Worker
Benefits Protection Act ("OWBPA"); the Employee Retirement Income Security Act;
the Americans with Disabilities Act; the Indiana Civil Rights Law; all such laws
as amended; and/or any other federal, state or local statute, regulation, or
order; (b) all claims under any principle of common law or equity, including but
not limited to, claims for alleged unpaid wages, salary, overtime, vacation pay
(other than accrued and unused vacation pay), and bonuses; any tort; any
allegedly wrongful employment practices; and breach of contract (including, but
not limited to, any claim(s) that I might have under any prior employment
agreement with the Company including, without limitation, the Employment
Agreement between the parties, dated January 1, 1997 ("1997 Employment
Agreement"); the letter of clarification and amendment of the 1997 Employment
Agreement between the parties, dated July 16, 1998; the Amended and Restated
Employment Agreement between the parties, dated July 1, 1999 ("1999 Employment
Agreement"); and the Amendment to Amended and Restated Employment Agreement,
dated January 1, 2001, but specifically excluding rights or claims I may have or
payments to be made to me under Section XI ("Indemnification") of the 1999
Employment Agreement and the Indemnification Agreement dated October 27, 1999;
and (c) all claims for any type of relief from the Company, including but not
limited to, claims for compensation, damages, costs and attorney's fees.
However, My Claims do not include any rights or claims under the ADEA that may
arise after the Effective Date of this Agreement (the "Effective Date" is that
date occurring seven (7) calendar days after I sign this Agreement, on the
condition that this Agreement is not revoked by me within such seven (7)
calendar day period, as described below). I further agree that I will not file,
prosecute, or pursue any complaints or charges against the Company with the
Equal Employment Opportunity Commission and/or any other local, state, or
federal agency or court, that I will not do so at any time hereafter, and that
if any such agency or court assumes jurisdiction of any complaint,
claim, or charge against the Company that I make, have made or authorize to be
made on my behalf, I shall withdraw such matter from such agency or court and/or
will indemnify the Company against all liabilities, costs, attorney's fees, and
expenses it incurs in said matters. In addition, this Agreement shall be
effective as a full and final compromise and settlement of any and all other
claims released in this Agreement. Notwithstanding the above, the parties also
agree that the above definition of "My Claims" and the foregoing waiver and
release does not include: (a) payments to be made to me under the Company's
health benefit plan for expenses I incurred prior to April 22, 2002; (b)
expenses I incurred prior to April 22, 2002, which are to be reimbursed to me
pursuant to the Company's expense reimbursement policy; (c) any claims arising
under this Agreement; and (d) any claims for advancement or indemnification
arising under the Company's by-laws, certificate of incorporation or policies,
applicable law, Section XI of my 1999 Employment Agreement or the
Indemnification Agreement of October 27, 1999.
3. Agreement To Release My Claims. I understand that, although the Company
has not claimed that my employment should be terminated for Cause, the Company
has determined to terminate my employment other than for Cause (as defined in
the 1999 Employment Agreement), and I acknowledge that my last day of employment
with the Company shall be April 22, 2002 ("Separation Date") which shall be
recorded as the date on which I resigned my employment. The Company hereby
agrees to: (a) make a lump sum separation payment to me, as soon as practical
after the Effective Date of this Agreement, in the amount of Five Hundred
Thousand Dollars ($500,000) less taxes and other required deductions to be
withheld for a net amount to me of Three Hundred Thirty Five Thousand Seven
Hundred and Fifty Dollars ($335,750), (b) make a lump sum separation payment to
me in the amount of Five Hundred Thousand Dollars ($500,000), less taxes and
other required deductions, on or as soon as practical after January 2, 2003; and
(c) transfer ownership of the laptop computer I am currently using to me, after
the Company has an opportunity to remove any confidential or Company-related
information, records, or documents from it. In consideration of the above
payments and other consideration, I agree to give up, release, and waive all of
My Claims as of the date hereof against the Company as described above. The
Company further agrees upon the signing of this Agreement to transfer the
$500,000 payment referred to in paragraph 3(b) above to an escrow account for my
sole benefit (except as expressly set forth in the escrow agreement to the
contrary) at the law firm of Xxxxxxx Berlin Shereff Xxxxxxxx, LLP. The Company
agrees that it shall not attempt to wrongfully hinder or delay release of these
monies from the escrow for any reason, including but not limited to my
subsequent employment not in violation of Section X of the 1999 Employment
Agreement, it being agreed that I have no duty to mitigate or seek such
employment. I will not bring any lawsuits against the Company relating to the
claims that I have given up, released, and waived, nor will I allow any suit to
be brought on my behalf. I acknowledge that I have received adequate
consideration for the release of My Claims in this Agreement. I also acknowledge
that I have received all other forms of compensation, of whatever kind, that may
be due to me by the Company, other than my accrued unused vacation pay which
will be paid to me by the Company in accordance with its regular payroll
practices, and other than reimbursable expenses and health benefit payments, as
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described in paragraph 2 above. I also agree that my rights under the
aforementioned statutes and any other federal, state, or local statute,
regulation, or order are effectively waived by this Agreement. Furthermore, I
hereby acknowledge and agree that while I am relinquishing all rights and claims
that I have under the 1999 Employment Agreement (other than rights and claims
that I have under Section XI ("Indemnification") of such agreement), said
agreement remains fully valid and enforceable by the Company with regard to any
and all post-termination and post-employment obligations that I have to the
Company, as set forth in such agreement, including but not limited to, my
obligations and the remedies set forth in Section X ("Confidentiality;
Noncompetition") of such agreement. I acknowledge that the separation benefit
offered to me under this Agreement was based on an individual determination and
was not offered in conjunction with any group termination or group severance
program, and I waive any claim to the contrary. I also agree that in further
consideration of the payments and other consideration provided to me by the
Company, I shall provide, during the twenty-four (24) month period after my
Separation Date, at the Company's request, reasonable and timely assistance to
it with regard to business matters within my knowledge or areas of
responsibility during my employ. I acknowledge that such assistance may be
needed with regard to transition or other ongoing business matters. Without
waiving any rights, I agree to fully cooperate with the Company's reasonable
requests for such assistance. The Company agrees to pay any and all reasonable
costs incurred in connection with such cooperation. In addition to the above, I
agree that this Agreement shall constitute my resignation of employment and my
resignation from all offices and any other position (including, without
limitation, any board position) held with the Company, effective April 22, 2002,
and I agree to execute such documents as the Company may prepare to acknowledge
such resignation.
4. Future Employment. I understand and agree that by executing this
Agreement I hereby relinquish any and all rights to employment with the Company
after the Separation Date.
5. Return Of The Company's Property/Non-Disparagement. Except as otherwise
provided herein, I hereby agree that no later than my Separation Date, I shall
return to the Company all of the Company's property that is in my possession or
control. This includes, but is not limited to, credit cards, phone cards,
cellular telephones, pagers, office keys, directories, computer, computer
hardware, books, documents, memoranda, computer disks and other software, and
all other records, and copies thereof. I also agree that I shall not make any
negative or disparaging remarks or comments to any other person and/or entity
about the Company. The Company agrees that neither it nor any of its officers or
directors shall make any negative or disparaging remarks or comments to any
other person and/or entity about me. The Company shall provide me with an
executed copy of the recommendation letter annexed hereto as Exhibit A.
6. Additional Understanding/Stock Options. Even though the Company will
provide consideration to me under this Agreement, the Company does not admit
that it is responsible or legally obligated to me, and the Company denies that
it is responsible or legally obligated to me for any matter or in connection
with My Claims. With regard to the 643,334 outstanding stock options (subject to
readjustment in accordance with the
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applicable option plans and agreements) that I have, I understand that they
shall vest on my Separation Date and, notwithstanding any other agreement or
plan to the contrary, I shall have twenty four (24) months from my Separation
Date (through April 22, 2004) to exercise any and all such vested options. I
also hereby agree to waive any right or claim to option grants made or to be
made to me in August, 2001, and/or in February, 2002, pursuant to agreements or
plans administered by the Company's Compensation Committee. I also waive any
right or claim, directly or indirectly, related to any option grants pursuant to
any other plans, grants, or agreements.
7. Consultation with Attorney. I understand that whether or not I decide to
actually consult an attorney is totally up to me. I understand and acknowledge
that I have been advised by the Company that I should consult with an attorney
prior to signing this Agreement, and I have had an adequate opportunity to do
so. My decision to sign this Agreement was voluntary and made after being given
said opportunity.
8. Confidentiality. The parties understand that, as a condition of this
Agreement, the fact of and terms and conditions of this Agreement are to remain
strictly confidential, and shall not be disclosed by either party other than to
their respective attorneys or financial advisors or as required by law or
lawfully-issued subpoena. The Company also agrees that I may disclose this
Agreement to my spouse provided that she agrees to be bound by this
confidentiality obligation. In addition, no statement inconsistent with this
Agreement regarding my separation shall be made by me unless I have the prior
written approval of the Company prior to making any such statement.
9. Violation Of This Agreement And Severability. I agree that if I violate
this Agreement by suing or bringing any action against the Company for any of My
Claims (other than one under the ADEA or the OWBPA), I will pay all costs and
expenses of defending the action or lawsuit incurred by the Company, including
but not limited to, reasonable attorneys' fees, costs, disbursements, awards,
and judgments. In addition, if I violate this Agreement by suing or bringing any
action against the Company for any of My Claims (other than one under the ADEA
or the OWBPA), I will promptly reimburse the Company all amounts paid to me by
it under this Agreement, plus legal interest, and the Company shall be entitled
to collect same through legal process or otherwise, from me. I also understand,
and it is my intent, that in the event this Agreement is ever held to be invalid
or unenforceable (in whole or in part) as to any particular type of claim or
charge or as to any particular circumstances, it shall remain fully valid and
enforceable as to all other claims, charges, and circumstances. As to any
actions, claims, or charges that would not be released because of the
revocation, invalidity, or unenforceability of this Agreement (other than one
under the ADEA or the OWBPA), I understand that the return of any payment made
to me, with legal interest, is a prerequisite to asserting or bringing any such
claims, charges, or actions. Notwithstanding any other provision of this
Agreement, I acknowledge that I have the right to file a charge alleging a
violation of the ADEA and/or the OWBPA with any administrative agency and/or to
challenge the validity of the waiver and release of any claim I might have under
the ADEA without either: (a) repaying to the Company the amount paid by it to me
under this Agreement; or (b) paying to the Company any other
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monetary amounts (such as attorney's fees and/or damages). However, although
this Agreement shall not prohibit me from challenging its validity under the
OWBPA and/or the ADEA, nothing in this Agreement shall be construed to prohibit
the Company from recovering from me its attorney's fees and/or costs
specifically authorized under the ADEA or any other law. Furthermore, in the
event I successfully challenge this Agreement under the OWBPA and prevail on the
merits in an ADEA action against the Company, I agree that the court in such
action may determine that the Company is entitled to restitution, recoupment, or
setoff (hereinafter "reduction") against any monetary award. Moreover, I agree
that the reduction in such ADEA action shall not exceed the lesser of: (a) the
amount recovered by me in such action; or (b) the payments made to me under this
Agreement.
10. Twenty-One (21) Calendar Day Period To Consider This Agreement and
Right to Revoke After Execution. I understand that I have twenty-one (21)
calendar days from the day that I receive this Agreement, not counting the day
upon which I receive it, to consider whether I wish to sign this Agreement. If I
sign this Agreement before the end of the twenty-one (21) calendar day period,
it will be my personal and voluntary decision to do so. I also understand that
if I fail to deliver this Agreement to the Company within said period of time,
it shall be deemed to be withdrawn by the Company. As stated above, the parties
also acknowledge and agree that this Agreement shall not be effective or
enforceable until the eighth calendar day after I sign this Agreement.
Furthermore, the offer to provide the consideration described herein shall
expire and be deemed withdrawn if not accepted within the twenty-one (21)
calendar day period referred to above. I understand that I may revoke this
Agreement at any time within seven (7) calendar days after I sign it, not
counting the day upon which I sign it. This Agreement will not become effective
or enforceable unless and until the seven (7) calendar day revocation period has
expired without my revoking it, i.e. on the eighth calendar day after I sign
this Agreement.
11. Procedure For Accepting or Revoking The Agreement. To accept the terms
of this Agreement, I must deliver the Agreement, after it has been signed and
dated by me, to the Company by hand or by mail and it must be received by the
Company within the twenty-one (21) calendar day period that I have to consider
this Agreement. All deliveries shall be made to the Company at the following
address, marked "Personal and Confidential": Xxxxxx X. Xxxxx, Executive Vice
President, Brightpoint, Inc., 000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxx 00000. To revoke my acceptance, I must deliver a written, signed
statement that I revoke my acceptance to the Company by hand or by mail and any
such notice of revocation must be received by the Company within seven (7)
calendar days after I signed the Agreement. If I choose to deliver my acceptance
or any revocation notice by mail, it must be: (a) postmarked and received by the
Company within the applicable period stated above; (b) properly addressed to the
Company at the address stated above; and (c) sent by certified mail, return
receipt requested.
12. My Representations. The Employee hereby acknowledges that he cooperated
with an investigation conducted by the Employer's attorneys, with an
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investigation conducted by a member of the Employer's board of directors and
testified before the enforcement division of the Securities and Exchange
Commission prior to the execution of this Agreement, that such cooperation was
given by Employee of his own free will and was not coerced and that the
information provided was not influenced by any person whatsoever and was
truthful and complete. I have read this Agreement carefully and I understand all
of its terms. In agreeing to sign this Agreement, I have not relied on any
statements or explanations made by the Company, except as specifically set forth
in this Agreement. I am voluntarily releasing My Claims. I also understand and
agree that this Agreement contains all of the agreements between the Company and
me relating to the matters included in this Agreement.
Date: 22 May 2002 /s/ Xxxxxxx X Xxxxxxxx
----------------------- ---------------------------------
Xxxxxxx X. Xxxxxxxx
Date: 24 May 2002 Received and agreed to by
----------------------- Brightpoint, Inc.:
By: /s/ Xxxxxx X Xxxxxx
----------------------------
Chief Executive Officer
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Exhibit A
April 19, 2002
Xx. Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Dear Phil:
It has been a pleasure working with you for the last five and a half years. Your
energy and efforts have been instrumental in many of the achievements that we
have obtained together. I also appreciate the relationships that you established
among our commercial and investment bankers, rating agencies and the equity
research analysts that followed our company.
You have helped build the Corporate Finance team and the talent that you have
helped to develop among the finance team positions the Company for long-term
success. I personally enjoyed working with you and wish you the best of luck in
your new endeavors.
Sincerely,
J. Xxxx Xxxxxx
President and Chief Operating Officer
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