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EXHIBIT 10.33
BRIGHTPOINT, INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
July 16, 1998
Mr. J. Xxxx Xxxxxx
Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
RE: EMPLOYMENT AGREEMENT (THE "AGREEMENT") DATED AS OF DECEMBER
1, 1996 BETWEEN BRIGHTPOINT, INC. (THE "EMPLOYER" OR
"COMPANY") AND J. XXXX XXXXXX (THE "EMPLOYEE")
Dear Xx. Xxxxxx:
The purpose of this letter is to clarify and amend the Agreement
and to provide consistency in the employment terms of senior management of the
Company. All capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Agreement.
1. Section 1 is amended by (a) providing that the Effective Date
shall be as of the date of this letter and (b) amending subsection (ii) to read
"(ii) if the Company gives the Notice of Non-Renewal, or terminates this
Agreement without Cause, the term of the Employee's employment shall be for a
final five (5) year period (the "Final Renewal Term") commencing effective at
the date of the Notice of Non-Renewal unless sooner terminated pursuant to
Section 6 hereof."
2. Section 6.4.2(a): is amended by changing all references therein
from 20% to 15% and adding the following language at the end of the provision:
"; provided, however, that no Change of Control shall be deemed to
have occurred for purposes of this Agreement if such person or
entity acquires 15% or more of the voting securities of the
Employer (a) as a result of a combination of the Employer or a
wholly-owned subsidiary of Employer with another entity owned or
controlled by such persons or entity (whether
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effected by a merger, sale of assets or exchange of stock or
otherwise) (the "Combination") and (b) after completion of the
Combination and for a period of not less than twelve (12) months
thereafter (i) executive officers of the Employer (as designated
in the Employer's most recent Annual Report on Form 10-K or its
most recent Proxy Statement filed with the Securities and Exchange
Commission with respect to its Annual Meeting of Stockholders)
immediately prior to the Combination constitute not less than 50%
of the executive officers of the Employer after the Combination or
(ii) the members of the Board of Directors of Employer immediately
prior to the Combination constitute not less than 50% of the
membership of the Board of Directors of the Employer after the
Combination. For purposes of calculating the executive officers of
the Employer after the Combination, those executive officers who
are terminated by the Employer for Cause or who terminate their
employment without Good Reason shall be excluded from the
calculation entirely."
3. Sections 6.4 and 9(d) are amended as follows:
a. All references to "six months" are changed to "twelve (12)
months."
4. Section 9(d)(ii)(A) is hereby amended by amending clause (b) to
read "(b) total compensation (including the value of all perquisites, such as
health and life insurance and car allowance, etc.) received or earned by the
Employee from the Employer during the twelve months prior to the Termination
Date, multiplied by five (5), or"
5. Section 9(d)(ii)(B) is hereby amended by deleting the words
"earned or received by Employee" in the seventh line of such subparagraph and
replacing them with the words "granted to Employee by the Employer".
6. A new Section 9(d)(iv) is added, reading as follows:
"(iv) The value of the stock options described above will be
determined using a Black-Scholes valuation methodology by an
investment bank reasonably acceptable to both Company and
Employee. The fees for such valuation will be paid by the
Company."
7. A new Section 9(g) is added, reading as follows:
"(g) (A) Upon the occurrence of a Change of Control, or (B) if in
breach of this Agreement, the Employer shall terminate the
Employee's employment other than pursuant to Sections 6.2 or 6.3
hereof (it being
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understood that a purported termination pursuant to Section 6.2 or
6.3 hereof which is disputed and finally determined not to have
been proper shall be a termination by the Employer in breach of
this Agreement), or (C) if the Employee shall terminate his
employment for Good Reason at any time, then notwithstanding the
vesting and exercisability schedule in any stock option agreement
between the Employer and Employee, all unvested stock options
granted by the Employer to the Employee pursuant to such agreement
shall immediately vest and become exercisable."
Except as set forth herein, the Employment Agreement remains in
full force and effect. Please confirm your agreement to the foregoing by
executing the enclosed copy of this letter where indicated.
Very truly yours,
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
Date: July 16, 1998
Agreed and Accepted By:
/s/ J. Xxxx Xxxxxx
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J. Xxxx Xxxxxx
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