EXHIBIT 10.5
BRIGHTPOINT, INC.
AGREEMENT FOR
SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFIT
THIS AGREEMENT is made as of the 7th day of April, 2005 by and between J.
Xxxx Xxxxxx (the "Executive") and Brightpoint, Inc., an Indiana corporation (the
"Company").
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
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 53 (the applicable date
the "Payment Start Date"), an annual amount (the "Supplemental Retirement
Benefit") calculated and paid pursuant to the provisions of this Agreement.
2. CALCULATION OF THE SUPPLEMENTAL RETIREMENT BENEFIT. The Supplemental
Retirement Benefit shall equal the product of (A) the Gross Benefit as defined
in subsection 2(a) below, multiplied by (B) the Early Commencement Percent
defined in subsection 2(d) below:
(a) GROSS BENEFIT. The Gross Benefit shall equal an annual
single-life annuity payment equal to the product of the Accrual Percentage (as
calculated in accordance with subsection 2(b) below) multiplied by the Final
Average Earnings (as defined in subsection 2(c) below).
(b) 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, 2008; plus
(iv) 2% for each full Year the Executive is employed by the
Company from July 1, 2008 through June 30, 2018; 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.
(c) FINAL AVERAGE EARNINGS. The Executive's Final Average Earnings
for purposes of subsection 2(a) 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).
(d) 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 in the form of a single-life
annuity for the Executive's lifetime, in the amount determined pursuant to
Section 2 above. Such annuity 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,
annuity 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 Date of
Termination, then no Supplemental Retirement Benefit shall be paid. If Executive
dies while receiving the Supplemental Retirement Benefit, then no payments of
the Supplemental Retirement Benefit shall be payable for any calendar month
commencing after the date of the Executive's death.
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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.
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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
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