SEPARATION AND GENERAL RELEASE AGREEMENT
Exhibit 10.1
THIS SEPARATION AND GENERAL RELEASE AGREEMENT (“Agreement”) is voluntarily entered into on
this 17th day of January, 2011 by and between Xxxxxx X. Xxxxx (“Fivel”) and Brightpoint, Inc. (“Company”).
WHEREAS, Fivel is currently employed by the Company as its Executive Vice President, General
Counsel and Secretary pursuant to an Amended and Restated Employment Agreement entered into between
the parties, dated July 1, 1999, as amended; and
WHEREAS, Fivel has provided notice to the Company that he wishes to voluntarily resign his
employment, effective February 28, 2011 (“Separation Date”), in order to accept employment with a
business entity that is not in competition with the Company; and
WHEREAS, the Company has agreed to accept Fivel’s resignation and it desires to engage him as
an independent contractor to perform consulting services for the Company, which engagement shall
commence on March 1, 2011; and
WHEREAS, Fivel wishes to enter into this agreement and he wishes to accept the Company’s offer
to engage him as a consultant on the terms and conditions set forth in the attached Consulting
Agreement (Exhibit A), in consideration for the promises he makes in this Agreement; and
WHEREAS, Brightpoint and Fivel have reached an amicable agreement regarding Fivel’s separation
from the Company’s employ and regarding his engagement as an independent contractor to perform
consulting services for the Company, and the parties wish to enter into this Agreement in order to
memorialize their agreement and to further define the obligations that the parties have to one
another.
NOW, THEREFORE, in consideration of One Dollar ($1.00) cash in hand paid, the mutual
understandings, covenants, and the release contained herein, and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties hereby voluntarily
agree as follows:
1. Definitions. Specific terms used in this Agreement have the following meanings:
(a) “Fivel” includes the undersigned, Xxxxxx X. Xxxxx, and anyone who has or obtains any legal
right or claims through him; (b) “Company” means Brightpoint, Inc.; (c) “Released Parties” means
the Company, Brightpoint North America, L.P., all of their past and present officers, directors,
employees, trustees, agents, shareholders, related corporations and entities, affiliates,
principals, 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, related
entities, predecessors, successors, and assigns, and all other entities, persons, and firms; (d)
“Employment Agreement” means the Amended and Restated Employment Agreement entered into between the
Company and Fivel, dated July 1, 1999, as amended; (e) “Indemnification Agreement” means the
separate Indemnification Agreement that was previously entered into between the Company and Fivel
dated August 13, 2004, as it may have been amended prior
hereto; and (f) the “Effective Date” of this Agreement is the eighth (8th) calendar
day after Fivel signs it, on the condition that he does not revoke it as described below.
Capitalized terms not ascribed definitions herein shall have the meanings as described and set
forth in the agreements referred to herein.
2. Conclusion of Employment. The parties hereby acknowledge and agree that Fivel has
provided notice to the Company of his desire to terminate the Employment Agreement, and accept
employment with another business entity that is not in competition with the Company, effective on
the Separation Date, and the Company has accepted such resignation. Fivel agrees to resign from
all boards of directors and other offices of all subsidiaries and affiliates of the Company and
shall sign all documents necessary to effect such resignations at such time(s) as the Company shall
request, effective from and after the Separation Date. The parties agree that the Employment
Agreement shall be deemed to be terminated on the Separation Date. However, the parties acknowledge
that they have certain continuing obligations to each other which survive the termination of the
Employment Agreement as more fully described in this Agreement.
3. Release of Fivel’s Claims. Fivel hereby releases the Released Parties from all
rights, actions, claims, and any and all liability to him, except as specifically provided in
Paragraph 4 (Excluded Claims) below. The claims that Fivel is releasing are referred to
herein as “Fivel’s Claims” and such claims include all of his rights to any relief of any kind from
the Released Parties, including without limitation, all claims he has now, whether or not he now
knows about the claims, including, but not limited to the following: (a) all claims relating to
Fivel’s employment with the 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 Civil Rights Act of 1866; the Age Discrimination in Employment Act (“ADEA”); the
Older Worker Benefits Protection Act (“OWBPA”); the Employee Retirement Income Security Act; the
Family and Medical Leave Act; the Americans with Disabilities Act; and/or any other federal, state
or local law, including, without limitation, the Indiana Civil Rights Law; (b) all claims under any
principle of common law or equity, including but not limited to, claims for alleged unpaid
compensation, bonuses, or other monies; commissions; any tort; breach of contract; and any other
allegedly wrongful employment practices; (c) all rights and claims under any employment agreement
between the Company and Fivel, including, without limitation, the Employment Agreement; and (d) all
claims for any type of relief from the Company. The parties agree that Fivel’s Claims do not
include any rights or claims that he may have under the ADEA which may arise after the Effective
Date of this Agreement.
4. Exclusions From Release. The parties agree that, in entering into this Agreement,
Fivel is not releasing or waiving any of the following:
a. Any right or claim that Fivel may have, as specifically provided in the Consulting
Agreement, the Indemnification Agreement, or in Section XI (Indemnification) of the
Employment Agreement.
b. Any right or claim that Fivel may have to unpaid Salary (as such term is defined in the
Employment Agreement) or benefits that he will earn prior to the Separation Date.
c. Any right or claim to any Bonus (as such term is defined in the Employment Agreement)
that may be awarded to Fivel by the Company pursuant to any applicable bonus plan. In
addition, the parties acknowledge that Fivel is eligible for an award of a Bonus relating to
and arising out of his 2010 employment with the Company (“2010 Bonus”). The 2010 Bonus, if
any, shall be paid to Fivel in 2011 on a date to be determined by the Company (“2010 Payment
Date”) in accordance with the applicable bonus plan. Fivel’s employment with the Company
will end in 2011 and, therefore, he is not eligible for a Bonus after the 2010 Payment Date.
d. Any right, benefit or claim that Fivel may have to those certain Restricted Stock Awards
and Restricted Stock Units that have been issued to him (vested and unvested) prior to the
Separation Date. Other than the aforesaid Restricted Stock Awards and Restricted Stock
Units, Fivel acknowledges and agrees that he has no right to an award of any additional
Restricted Stock Awards or Restricted Stock Units.
e. Any right or claim that Fivel may have under the Amended and Restated Supplemental
Executive Retirement Plan dated January 18, 2006, as it may have been amended prior hereto,
and the parties hereby ratify said plan in all respects and agree that it shall survive the
Separation Date.
f. Any right or claim to vested rights that Fivel may have to benefits under any retirement
or other employee benefit plan.
In addition to the foregoing, Fivel acknowledges that this Agreement is not intended to: (a)
prevent him from filing a charge or complaint, including a challenge to the validity of this
Agreement, with the Equal Employment Opportunity Commission; (b) prevent him from participating in
any investigation or proceeding conducted by that agency; or (c) establish a condition precedent or
other barrier to exercising these rights. While Fivel has the right to participate in an
investigation of said agency, he understands that he is waiving his right to any monetary recovery
arising from any investigation or pursuit of claim on his behalf. Fivel acknowledges that he has
the right to file a charge alleging a violation of the ADEA with any administrative agency and/or
to challenge the validity of the waiver and release of any claim that he might have under the ADEA
without either: (a) paying any amount to the Company that was previously paid by it to him; or (b)
paying to the Company any other monetary amounts (such as attorney’s fees and/or damages).
5. Separation Benefits. In consideration of Fivel’s promises set forth in this
Agreement, the Company hereby agrees to the following:
a. It shall continue Fivel’s employment at his current Salary and Bonus (as such
terms are defined in the Employment Agreement) through the Separation Date; and
b. It shall enter into the Consulting Agreement (Exhibit A) with Fivel.
The Parties acknowledge the Company is providing the Separation Benefits as consideration for
Fivel’s promises in this Agreement.
6. Additional Agreements. The parties agree to execute the attached Reaffirmation of
Separation and General Release Agreement (Exhibit B) on the Separation Date. In addition, Fivel
agrees to adhere to his continuing obligations to the Company pursuant to Article X
(Confidentiality; Noncompetition) of the Employment Agreement, and the parties agree that all of
the restrictions on Fivel’s activities, as set forth therein, shall be applicable and in full force
and effect through the later of the later of: (a) April 30, 2013; or (b) the end of the “Consulting
Term” (as such term is defined in the Consulting Agreement). In consideration of the Company’s
promises, as set forth in this Agreement, Fivel agrees to comply with his obligations as set forth
in this Agreement, and he agrees to give up, release, and waive all of Fivel’s Claims against the
Released Parties, and each of them, as well as all other actions, causes of action, claims or
demands that he may have against the Released Parties, and any of them, except as specifically
provided in Paragraph 4 (Exclusions). Fivel acknowledges and agrees that the consideration
set forth above includes all amounts for damages or other amounts owed to him of any kind, costs,
and attorneys’ fees and expenses. Fivel also agrees that he shall not bring any lawsuits against
the Company relating to the claims that he has given up, released, and waived, nor will he allow
any suit to be brought on his behalf. The consideration described above constitutes full and fair
consideration for the release of Fivel’s Claims. Fivel acknowledges that the Company is not
otherwise obligated to provide the consideration set forth above to him. Fivel also acknowledges
that he has received all other forms of compensation and payments, of whatever kind, that may be
due to him by the Company, other than as set forth in Paragraph 4 (Exclusions). Each
party agrees to reimburse the other party for any cost, loss, or expense, including, but not
limited to, reasonable attorneys’ fees and expenses, awards or judgments, resulting from his/its
failure to perform his/its obligations under this Agreement, plus legal interest. Fivel hereby
relinquishes any and all rights to employment with the Company after the Separation Date. In
exchange for the consideration provided to Fivel by the Company, Fivel also agrees not to make any
disparaging or negative statements about the Company. Fivel also agrees that he shall not,
directly or indirectly, take any action which has the effect of harming the Released Parties or
interfering with their relationships (contractual or otherwise) with any entity or person,
including, but not limited to, any employee or customer of the Released Parties, or other entity
with which the Company has a business relationship.
7. Return of Company Property. Fivel agrees that he shall return to the Company all
of its property that was in his possession or control prior to the Separation Date. This includes,
but is not limited to, any and all legal and other records, strategic planning and all other
documents, computer software and hardware, notes, memoranda, records, and all copies thereof.
8. Confidentiality. Fivel understands that, as a material and essential 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 him to any person, other than to his spouse, his
attorney, or as required by law or lawfully-issued subpoena. Furthermore, Fivel also understands
that in the course of his employment with the Company, Fivel had access to confidential information
and trade secrets of the Company. In addition, the parties acknowledge that certain confidential
information to which Fivel had access is protected by the attorney-client privilege and may not be
disseminated unless authorized in writing by an authorized representative of the Company in
writing.
9. Violation of Agreement and Severability. Fivel agrees that if he violates this
Agreement by suing the Released Parties (or any of them) for any of Fivel’s Claims (other than one
under the ADEA or the OWBPA), or if he violates it in any other respect, he will pay all costs and
expenses of defending the action or lawsuit incurred by the Released Parties, including but not
limited to, reasonable attorneys’ fees and expenses, costs, disbursements, awards, and judgments.
In addition, if Fivel violates this Agreement by suing the Released Parties (or any of them) for
any of Fivel’s Claims (other than one under the ADEA or the OWBPA), the Company shall be relieved
of its obligations to him under the Consulting Agreement.
10. Period to Consider Agreement and Period to Revoke. Fivel understands that, as
required by the ADEA and OWBPA, he has been given twenty one (21) calendar days from the day that
he received this Agreement, not counting the day upon which he received it, to consider whether he
wishes to sign this Agreement. If Fivel signs this Agreement before the end of the twenty one (21)
calendar day period, it will be his personal and voluntary decision to do so. Fivel also
understands that if he fails to deliver this Agreement to Xxxxxx X. Xxxxxx at 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 Fivel signs this Agreement. As required by the ADEA and the OWBPA,
Fivel also understands that he may revoke this Agreement at any time within seven (7) calendar days
after he signs it, not counting the day upon which he signs it. To accept the terms of this
Agreement, Fivel must deliver the Agreement, after it has been signed and dated by him, to Xx.
Xxxxxx, by hand or by mail, and it must be received by Xx. Xxxxxx within the twenty one (21)
calendar day period that Fivel has to consider this Agreement. To revoke his acceptance, Fivel
must deliver a written, signed statement that he revokes his acceptance to Xx. Xxxxxx by hand or by
mail and any such notice of revocation must be received by Xx. Xxxxxx within seven (7) calendar
days after Fivel signs the Agreement. If Fivel chooses to deliver his acceptance or any revocation
notice by mail, it must be: (a) postmarked and received by Xx. Xxxxxx within the applicable period
stated above; (b) properly addressed to Xx. Xxxxxx; and (c) sent by certified mail, return receipt
requested.
11. Parties’ Representations and Warranties. The Company hereby represents and
warrants that, to the best of its knowledge and belief, Fivel has not breached any of his
obligations under the Employment Agreement, and it is not aware of any act or omission by Fivel
which, with the giving of notice and the lapse of time, could give rise to a breach by Fivel under
the Employment Agreement. Fivel hereby represents and warrants that he has not breached any of his
obligations under the Employment Agreement.
12. Fivel’s Representations. Fivel has read this Agreement carefully and he
understands all of its terms. Fivel also understands that, in signing this Agreement, he may be
giving up possible future administrative and/or legal claims. Fivel’s decision to sign this
Agreement was voluntary and in agreeing to sign this Agreement, he has not relied on any statements
or explanations made by the Company, except as specifically set forth in this Agreement. Fivel is
voluntarily releasing any and all claims against the Company.
13. Additional Understandings. The parties understand and agree that this Agreement
is entered into and executed solely for the purpose of terminating the parties’ employment
relationship on an amicable and certain basis, and to memorialize Fivel’s engagement as an
independent contractor after his employment with the Company ends, and this Agreement shall not be
construed as an admission of liability or wrongdoing. Additionally, Fivel acknowledges that it is
up to him whether he consults an attorney prior to signing this Agreement. As required by the ADEA
and the OWBPA, the Company has advised Fivel that he should consult with an attorney prior to
signing this Agreement, and Fivel has had an adequate opportunity to do so. Fivel’s decision to
sign this Agreement was voluntary and made after being given said opportunity.
14. Miscellaneous. This Agreement shall inure to the benefit of, may be enforced by,
and shall be binding on the parties and their heirs, executors, administrators, personal
representatives, assigns and successors in interest. This Agreement may be assigned by the Company
without notice to or the consent of Fivel. However, this Agreement is personal to Fivel and may
not be assigned by him. In the event of any dispute about this Agreement, the laws of the State of
Indiana shall govern the validity, performance, enforcement, and all other aspects of this
Agreement. This Agreement may be executed in counterparts, including facsimile, pdf, or photocopy
counterparts, each of which shall be deemed an original but all of which taken together shall
constitute one and the same Agreement. This Agreement may not be modified, altered, amended or
waived in any manner except by written instrument duly executed by the Company’s Chief Executive
Officer and by Fivel.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date(s) set forth
below.
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx |
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| Date: January 17, 2011 | ||||
|
Brightpoint, Inc., on behalf of itself and the other persons and entities released herein: |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx Chairman of the Board and Chief Executive Officer |
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| Date: | January 17, 2011 | |||
EXHIBIT A
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (“Consulting Agreement”) is voluntarily entered into as of the
17th day of January, 2011, by and between Xxxxxx X. Xxxxx (“Fivel”) and Brightpoint,
Inc. (“Company”).
Preliminary Statement
WHEREAS, Fivel is currently employed by the Company as its Executive Vice President, General
Counsel and Secretary pursuant to an Amended and Restated Employment Agreement entered into between
the parties, dated July 1, 1999, as amended (the “Employment Agreement”); and
WHEREAS, Fivel provided notice to the Company that he wishes to voluntarily resign his
employment, effective February 28, 2011 (the “Separation Date”), in order to accept employment with
a business entity that is not in competition with the Company; and
WHEREAS, on January 17, 2011, the parties entered into a Separation and General Release
Agreement (“Separation Agreement”) that provides that they will also enter into this Consulting
Agreement.
NOW, THEREFORE, in consideration of the mutual understandings, covenants, and for other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby
voluntarily agree as follows:
Agreement
1. Engagement of Fivel as Consultant.
a. On the condition that Fivel timely enters into the Reaffirmation of Separation and General
Release Agreement attached to the Separation Agreement as Exhibit B, the Company agrees to
engage Fivel as a consultant and Fivel agrees to provide certain consulting services to the Company
as described in subsection b. below (“Consulting Services”) in exchange for the consideration set
forth herein. Fivel agrees to provide the Consulting Services during the period that commences on
March 1, 2011, and continues through April 30, 2013 (the “Consulting Term”). In the absence of a
written agreement extending the Consulting Term signed by the Company’s Chief Executive Officer and
Fivel, the Consulting Term shall automatically terminate on April 30, 2013, unless earlier
terminated pursuant to and in accordance with Section 2 of this Consulting Agreement.
b. The Consulting Services shall be requested by the Company and shall be responded to by
Fivel as set forth in this subsection b. The Consulting Services shall consist of the following:
(i) such services as may be reasonably requested by the Company’s Chief Executive Officer (or his
designee), consistent with Fivel’s experience and responsibilities as
Executive Vice President, General Counsel and Secretary; (ii) the preparation of reports
reasonably requested by the Company’s Chief Executive Officer (or his designee) regarding the
status of deliverables or other matters assigned to Fivel during the Consulting Term; (iii)
assistance to the Company (and any of its affiliates and subsidiaries) with regard to business and
other matters within Fivel’s knowledge or areas of responsibility during his employment; (iv)
assistance to the Company (and any of its affiliates and subsidiaries) with regard to any legal or
other matters currently pending or any matters that have arisen or may arise in the future about
which Fivel has knowledge or that may, in some manner, relate to his employment with or
responsibilities to the Company; and (v) cooperation with the Company and its attorneys in
connection with any proceeding involving the Company (and any of its affiliates and subsidiaries)
before a court, administrative agency, governmental organization, or other entity. Company agrees
that it shall make any request for Consulting Services by contacting Fivel by telephone, text,
email, or any other electronic means. The parties acknowledge and agree that certain requests for
Consulting Services may include legal services to be provided by Fivel to the Company, and they
further agree that Fivel’s responses to such requests shall be protected by the attorney-client
privilege. Fivel agrees that he will respond to each request to perform Consulting Services within
forty eight (48) hours of the Company’s transmittal of such request, unless it is wholly
impractical or impossible for him to do so. When Fivel responds to the Company, he and the
Company’s Chief Executive Officer (or his designee) shall discuss the request and they shall reach
an agreement as to when such request will be fulfilled by Fivel. The parties agree that each of
them shall be reasonable in connection with any time limitation placed on Fivel and that such time
limitation will be determined by them based on the nature of the services requested. Fivel agrees
that he shall provide all Consulting Services in a timely (based on the parties’ agreement),
expeditious, and professional manner, to the best of his abilities. Due to the nature of Fivel’s
executive position with the Company during his employment, he understands that time may be of the
essence in connection with certain requests directed to him by the Company and he agrees that
failure to respond within the agreed time period may be deemed by the Company to be a breach of
this Agreement; provided, however, that prior to deeming the first such failure by
Fivel to be a breach, the Company shall provide Fivel with written notice of such alleged breach
and an opportunity for Fivel to cure such alleged breach within twenty four (24) hours or to
commence the cure of such alleged breach that is incapable of being cured within twenty four (24)
hours, and provided further that such alleged breach shall be cured by Fivel within a commercially
reasonable period of time thereafter. The parties agree that the foregoing cure opportunity shall
be provided only one (1) time to Fivel during the Consulting Term.
2. Termination of Consulting Agreement. The parties agree that they may terminate
this Consulting Agreement and the Consulting Term by mutual written agreement. In addition, either
party may terminate this Agreement and the Consulting Term upon written notice to the other party
in the event such other party breaches any term or condition of this Consulting Agreement, except
as provided in Section 1.b. In the event of the Company’s termination of this Agreement due to
Fivel’s breach, the parties acknowledge that Fivel shall forfeit any and all rights to receive any
further unvested benefits under this Consulting Agreement, including, but not limited to, unvested
Restricted Stock Awards (“RSAs”) and Restricted Stock Units (“RSUs”) described in Section 5. The
parties agree that any such termination by the Company shall not
affect Fivel’s rights to any RSAs or RSUs that have vested pursuant to Section 5 during the
Consulting Term prior to the termination of the Consulting Agreement.
3. Compensation and Expense Reimbursement. During the Consulting Term, the Company
shall pay Fivel a retainer of One Dollar ($1.00) per calendar year in exchange for the Consulting
Services. In addition, the Company shall reimburse Fivel for any out-of-pocket expenses incurred
by him in connection with the Consulting Services, on the condition that said expenses are approved
in advance and in writing by the Company’s Chief Executive Officer.
4. Benefits. Fivel shall not be an employee of the Company during the Consulting Term
and, therefore, during such period he shall not be eligible for and shall not be entitled to
participate in any Company insurance program or plan, pension plan, deferred compensation plan,
stock option plan, or any other employee benefits provided by the Company to its employees except
as set forth in Section 5.
5. Vesting of Restricted Stock Awards and Restricted Stock Units During Consulting
Term. The Company acknowledges that during Fivel’s employment with the Company, he was granted
45,000 unvested RSAs and 88,253 unvested RSUs (as of the Separation Date) in accordance with the
terms of the Company’s 2004 Long Term Incentive Plan, as amended (“ 2004 Plan”) and the applicable
award agreements entered into by and between Fivel and the Company. The Company agrees that these
previously-granted RSAs and RSUs shall continue to vest during the Consulting Term, in accordance
with the terms and conditions of the 2004 Plan, and as it may be amended in the regular course of
business from time to time and the applicable award agreements entered into by and between Fivel
and the Company.
6. Right of Control. As an independent contractor, during the Consulting Term, Fivel
shall retain and exercise full control over the order, sequence, details, manner, and means by
which he achieves the results provided for under this Consulting Agreement; provided, that such
means are not inconsistent with or contrary to the requests provided to him by the Company.
7. Office Space, Equipment, and Materials. During the Consulting Term, Fivel shall
provide his own office space, equipment, supplies, and materials in connection with the Consulting
Services he will provide to the Company.
8. No Subcontracting. The services to be provided by Fivel, as described in this
Consulting Agreement, may not be subcontracted by him to any other individual or entity, and he may
not engage any subcontractor or agent to carry out any of the Consulting Services set forth in this
Consulting Agreement.
9. No Conflicting Agreements. The parties represent and warrant that no verbal or
written agreements exist which would prevent them from entering into this Consulting Agreement.
| 10. | Independent Contractor During Consulting Term. |
a. Notwithstanding any other provision of this Consulting Agreement to the contrary, the
parties agree that during the Consulting Term, Fivel shall not be deemed to be employed by the
Company. During the Consulting Term, Fivel shall serve as an independent contractor to the
Company.
b. No acts or assistance given to Fivel by the Company shall be construed to alter the
independent contractor relationship, and nothing contained in this Consulting Agreement shall be
construed to place Fivel and the Company in a relationship of partners, joint venturers, or
principal and agent.
x. Xxxxx is not authorized to assume or undertake any obligation of any kind, express or
implied, on behalf of the Company; nor is he authorized on behalf of the Company to make any
promise, warranty or representation with respect to the Company.
11. Taxes and Compliance with Laws. All amounts payable hereunder to Fivel during the
Consulting Term for Consulting Services shall be paid without reduction by the Company for any
local, state or federal income, employment or withholding taxes, it being the intention and
agreement of the parties that Fivel shall be responsible for the payment of all taxes (including,
but not limited to, income, self-employment, employment, and withholding taxes), fines, penalties,
and assessments imposed or related to his business activities. Fivel shall be solely responsible
for compliance with all state, local and federal laws, orders, codes and ordinances applicable to
the performance of Consulting Services under this Consulting Agreement.
| 12. | Cooperation and Indemnification. |
a. In the event that the Company or Fivel, or both, are involved in a dispute or litigation
involving third parties arising from the provision of Consulting Services under this Consulting
Agreement, or arising out of or relating to Fivel’s prior employment with the Company, the Company
and Fivel shall cooperate fully with respect to such dispute, unless their legal interests are in
conflict.
x. Xxxxx agrees to fully indemnify, defend, and hold harmless the Company, and its directors,
officers, agents, employees, shareholders, insurers and attorneys from and against any and all
claims, damages and expenses, including reasonable costs and attorneys’ fees, arising from or
alleged to arise from: (i) any breach by Fivel of any material term set forth in this Consulting
Agreement; or (ii) any grossly negligent act or omission of Fivel, including but not limited to,
all acts and omissions of Fivel in connection with Consulting Services. Similarly, the Company
agrees to fully indemnify, defend, and hold harmless Fivel from and against any and all claims,
damages and expenses, including reasonable costs and attorneys’ fees, arising from or alleged to
arise from: (i) any breach by the Company of any material term set forth in this Consulting
Agreement; (ii) any grossly negligent act or omission of the Company, including but not limited to,
all acts and omissions of the Company in connection with its obligations to Fivel
pursuant to this Consulting Agreement; or (iii) the Consulting Services provided by Fivel, on the
condition that such services were provided in accordance with the terms of this Consulting
Agreement in good faith and in the absence of any gross negligence or omission of Fivel.
13. Confidentiality. In consideration of the Company’s agreement to enter into this
Consulting Agreement, Fivel agrees that the fact of and terms and conditions of this Consulting
Agreement are to remain strictly confidential, and shall not be disclosed by him to any person
other than to his attorney, or as required by law or lawfully-issued subpoena. Furthermore, Fivel
also understands that in the course of the Consulting Term, he may be given access to confidential
information and trade secrets of the Company. Fivel agrees that he shall not, without the
Company’s prior written consent, either directly or indirectly, disclose to any third person any
confidential information or trade secrets of or about the Company. “Confidential information”, as
referred to herein, shall have the same meaning as set forth in Section X of the Employment
Agreement. This Consulting Agreement shall supplement any obligations that Fivel may have to the
Company pursuant to applicable state and federal trade secrets laws.
14. Interpretation of Agreement. This Agreement shall be deemed to have been drafted
jointly by the parties, and in the event of an ambiguity in this Agreement, the same shall not be
construed against any party.
15. Non-Waiver. The waiver by any party of compliance by any other party with any
provision of this Consulting Agreement shall not operate or be construed as a waiver of any other
provision of this Consulting Agreement (whether or not similar), or a continuing waiver or a waiver
of any subsequent breach by a party of a provision of this Consulting Agreement. Performance by
any party of any act not required of it under the terms and conditions of this Consulting Agreement
shall not constitute a waiver of the limitations on its obligations under this Consulting
Agreement, and no performance shall prohibit that party from asserting those limitations as to any
further or future performance of its obligations.
16. Miscellaneous. This Agreement and the provisions hereof (in whole or in part)
shall not be assignable by the Company; provided, however, that this Agreement
shall inure to the benefit of and be binding upon any corporate or other successor of the Company
which shall acquire, directly or indirectly, by merger, consolidation, purchase or otherwise, all
or substantially all of the assets or stock of the Company, and in such case this Consulting
Agreement may be assigned by the Company without notice to or the consent of Fivel. However, this
Consulting Agreement is personal to Fivel and may not be assigned by him. In the event of any
dispute about this Consulting Agreement, the laws of the State of Indiana shall govern the
validity, performance, enforcement, and all other aspects of this Agreement. This Consulting
Agreement may be executed in counterparts, including facsimile, pdf, or photocopy counterparts,
each of which shall be deemed an original but all of which taken together shall constitute one and
the same Agreement. This Consulting Agreement may not be modified, altered, amended or waived in
any manner except by written instrument duly executed by the Company’s Chief Executive Officer and
by Fivel.
17. Parties’ Representations. The parties have read this Consulting Agreement
carefully and each of them understands all of its terms. Each party’s decision to sign this
Consulting Agreement was voluntary and in agreeing to sign it neither party has relied on any
statements or explanations made by the other party, except as specifically set forth in this
Consulting Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date(s) set forth
below.
| Xxxxxx X. Xxxxx |
||||
| Date: | ||||
| Brightpoint, Inc.: |
||||
| By: | ||||
| Printed: | Xxxxxx X. Xxxxxx | |||
| Title: | Chairman
of the Board and Chief
Executive Officer |
|||
| Date: | ||||
EXHIBIT B
REAFFIRMATION OF SEPARATION AND GENERAL RELEASE AGREEMENT
Xxxxxx X. Xxxxx and Brightpoint, Inc., hereby reaffirm the terms of the Separation and General
Release Agreement previously entered into between them on January 17, 2011 (“Agreement”), a copy of
which is attached hereto as Exhibit A and is incorporated by reference into this
Reaffirmation of Separation and General Release Agreement (“Reaffirmation”). The parties hereby
reaffirm that they have complied with all the terms of the Agreement and that they will continue to
do so. The parties also reaffirm and agree to all the terms of the Agreement as delineated in
Exhibit A. This Reaffirmation shall not apply to rights or claims that Fivel may have that
arise after the date the parties sign this Reaffirmation or to other rights or claims that are
specifically described in Paragraph 4 (Exclusions) of the Agreement.
By signing this Reaffirmation, the parties state that they have read it and understand it, and
Fivel specifically states that he understands that he is giving up possible legal and/or
administrative claims. In addition, Fivel is aware of his right to consult an attorney before
signing this Reaffirmation and that he has been advised by the Company to do so, and he understands
that he has seven (7) days after signing this Reaffirmation to revoke it. The parties have signed
this Reaffirmation knowingly and voluntarily.
| Brightpoint, Inc. | ||||||
| By: | ||||||
Xxxxxx X. Xxxxx
|
Printed: | Xxxxxx X. Xxxxxx | ||||
| Its: | Chairman of the Board and Chief Executive Officer | |||||
Dated:
|
Dated: | |||||
