EXHIBIT 10.2
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of the 22nd day of April, 2002 by and among
Brightpoint, Inc., a Delaware corporation (the "Company"), Xxxxxxx X. Xxxxxxxx,
an individual ("Bounsall") and Xxxxxxx Berlin Shereff Xxxxxxxx, LLP, as escrow
agent (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, pursuant to that certain Separation and General Release
Agreement dated as of the date hereof between the Company and Bounsall (the
"Separation Agreement"), the Company is to make a lump sum cash payment to
Bounsall in the amount of U.S. $500,000 (less taxes and other required
deductions as set forth herein) on January 3, 2003 (the "Payment"), upon the
terms and conditions set forth in the Separation Agreement; and
WHEREAS, pursuant to the terms of the Separation Agreement, the
Company is depositing Five Hundred Thousand Dollars ($500,000) in escrow with
the Escrow Agent for the sole benefit of Bounsall on the date hereof to be held
by the Escrow Agent subject to the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. Each of the Company and Bounsall does hereby appoint and designate the
Escrow Agent as escrow agent for the purposes set forth herein, and the Escrow
Agent does hereby accept such appointment subject to the terms and conditions
set forth herein.
2. Upon the execution and delivery hereof, the Company will deposit with
the Escrow Agent U.S. $500,000 (the "Deposit"), to be held in escrow subject to
the terms and conditions hereof.
3. The Escrow Agent shall deliver the Deposit upon, and pursuant to, the
written instructions as hereinafter set forth:
On or before 12:00 Noon on January 1, 2003, New York City local time the
Company shall send to Escrow Agent a written explanation of the amount of
required taxes and other required deductions which shall be deducted by the
Escrow Agent from the Deposit (the "Deduction") before making the Payout as
hereinafter defined. On January 3, 2003, the Escrow Agent shall remit the
Deduction to the Company by wire transfer and the Company shall deposit such
monies on Bounsall's behalf as required by law.
On January 3, 2003, the Escrow Agent shall remit the Payment to Bounsall by
wire transfer (the "Payout") unless on or before 12:00 Noon on January 1, 2003,
the Company shall have objected to such Payout by written notice of such
detailed objection to the Escrow Agent with a copy to Bounsall (the "Company
Notice") signed by the Company. The Company warrants that as of the date of this
Agreement it is not aware of any basis to object to such Payout. The Company
further agrees that the only basis upon which it may object to such Payout is
the failure, after due notice, of Bounsall to honor the terms of the Separation
Agreement between Bounsall and the Company or any other obligation which
expressly survives according to the terms of the Separation Agreement.
Upon delivery by the Escrow Agent of the Payout to Bounsall, this
Escrow Agreement shall terminate, subject to the provisions of Section 9 hereof,
which Section shall survive such termination.
4. The duties and responsibilities of the Escrow Agent hereunder shall be
determined solely by the express provisions of this Escrow Agreement and no
other or further duties or responsibilities shall be implied. The Escrow Agent
shall be under no obligation to refer to the Separation Agreement or any other
documents between or among the parties related in any way to this Escrow
Agreement.
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5. The Escrow Agent may rely and shall be protected in acting or refraining
from acting upon any written instructions by the Company and/or Bounsall
furnished to it hereunder and believed by it to be genuine and to have been
signed or presented by the proper party or parties.
6. In the event that the Escrow Agent (1) (a) shall be uncertain as to its
duties or rights hereunder; (b) shall receive a Company Objection prior to 12:00
Noon on January 1, 2003, New York City local time, or (c) shall resign pursuant
to Section 8 hereof, and (2) does not receive joint written instructions
regarding the disposition of the Deposit from the Company and Bounsall, then the
Escrow Agent shall refrain from taking any action and its sole obligation shall
be (i) to keep safely the Deposit held in escrow until it shall be directed
otherwise by an order or judgment of a court of competent jurisdiction or (ii)
to deliver the Deposit to a court of competent jurisdiction and commence an
action for interpleader or its equivalent. The costs of the foregoing shall be
borne by whichever of the Company and Bounsall is the non-prevailing party.
7. The Escrow Agent shall not be liable for any action taken or omitted by
it in good faith unless a court of competent jurisdiction determines that the
Escrow Agent's willful misconduct or gross negligence was the cause of any loss
to the Company or Bounsall. The Escrow Agent's responsibilities under this
Escrow Agreement shall terminate upon its delivery of the Deposit in accordance
with the provisions of Section 3 above or to a third party in accordance with
the provisions of Section 6 above, and the Escrow Agent shall not be liable for
any loss to the Company or Bounsall occurring thereafter. The Escrow Agent may
consult with counsel of its own choice and, at its option, may act as its own
counsel in connection herewith.
8. The Escrow Agent may resign and/or be discharged from its duties and
obligations hereunder by giving notice in writing of such resignation specifying
a date when such resignation shall take effect which date shall not be earlier
than ten (10) days after the date of giving such
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notice. Upon the effectiveness of such resignation, the Escrow Agent shall
dispose of the Deposit in accordance with the joint written instructions of the
Company and Bounsall.
9. Each of the Company and Bounsall hereby jointly and severally
indemnifies the Escrow Agent for, and agrees to hold it harmless against, any
loss, liability or expense, arising out of or in connection with this Escrow
Agreement and carrying out its duties hereunder, including, without limitation,
reasonable attorneys' fees and other costs and expenses of defending itself
against any claim of liability, except to the extent such loss, liability or
expense is the result of the Escrow Agent's willful misconduct or gross
negligence; provided, however, that the foregoing provisions of this Section 9
shall not affect the rights and remedies of the Company and Bounsall as against
each other. Anything in this Escrow Agreement to the contrary notwithstanding,
in no event shall the Escrow Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, lost profits), even if the Escrow Agent has been advised of the likelihood
of such loss or damage and regardless of the form of action.
10. All notices and communications hereunder shall be in writing and shall
be sent by registered mail, return receipt requested, air courier, personal
delivery or verified facsimile, as follows:
If to the Escrow Agent:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx Esq.
Fax: (000) 000-0000
If to the Company:
Brightpoint, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, General Counsel
Fax: (000) 000-0000
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with a copy to
Blank Rome Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to Bounsall:
Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Fax: (000)000-0000
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx Esq.
Fax: (000)000-0000
or to such other address as any of the above may have furnished to the other
parties in writing by registered mail, return receipt requested, air courier,
personal delivery, or verified facsimile, and any such notice or communication
given in the manner specified in this Section 10 shall be deemed to have been
duly given on the date received by the recipient party. In the event that the
Escrow Agent, in its sole discretion, shall determine that any emergency exists,
the Escrow Agent may use such other means of communications as the Escrow Agent
deems advisable.
11. The provisions of this Escrow Agreement may be waived, altered, amended
or supplemented, in whole or in part, only by a writing signed by all of the
parties to be charged with such waiver, alteration, amendment or supplement.
12. This Escrow Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors and assigns.
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13. This Escrow Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. Subject to Section 7 hereof, the Escrow Agent shall not incur any
liability for following the instructions herein contained or expressly provided
for, or, subject to Section 5 hereof, written instructions given by the Company
and/or Bounsall.
15. The parties hereto acknowledge and agree that the Escrow Agent may
represent Bounsall in connection with any dispute arising hereunder, under the
Separation Agreement and/or any other matters. The Company waives the right to
raise any claim of conflict or any claim of a similar nature in connection with
such representation.
16. This Escrow Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to its principles of
conflicts of laws and any action brought hereunder shall be brought exclusively
in the Federal or state courts located in the State of New York, County of New
York. With respect to any action brought hereunder in said courts, each party
hereto (a) irrevocably waives any objection on the grounds of venue, forum
non-conveniens or any similar grounds and (b) irrevocably consents to service of
process in any manner permitted by applicable law and consents to the
jurisdiction of said courts.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
THE COMPANY:
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
BOUNSALL:
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx
ESCROW AGENT:
XXXXXXX BERLIN SHEREFF XXXXXXXX, LLP
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx Esq.
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