EXHIBIT 10.2
BRIGHTPOINT, INC.
AMENDED AND RESTATED
AGREEMENT FOR
SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFIT
THIS AMENDED AND RESTATED AGREEMENT is entered into as of the 18th day
of January, 2006 by and between J. Xxxx Xxxxxx (the "Executive") and
Brightpoint, Inc., an Indiana corporation (the "Company"), effective as of April
7, 2005. This Agreement fully supercedes the prior Agreement for Supplemental
Executive Retirement Benefit entered into by the parties effective April 7,
2005.
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
beginning 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
including, but not limited to, the payment period described in Section 3 below.
2. CALCULATION OF THE SUPPLEMENTAL RETIREMENT BENEFIT.
(a) FORMULA. The Supplemental Retirement Benefit shall equal
the lesser of:
(i) $344,000 and
(ii) the product of (A) the Gross Benefit as defined
in subsection 2(b) below, multiplied by (B) the Early Commencement
Percent defined in subsection 2(e) below:
(b) GROSS BENEFIT. The Gross Benefit shall equal an annual
payment equal to the product of the Accrual Percentage (as calculated in
accordance with subsection 2(c) below) multiplied by the Final Average Earnings
(as defined in subsection 2(d) below).
(c) 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.
(d) FINAL AVERAGE EARNINGS. The Executive's Final Average
Earnings for purposes of subsection 2(b) 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).
(e) 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 for a ten-year period or, if
earlier, through the date of the Executive's death, in an annual amount
determined pursuant to Section 2 above. Payment 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, 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
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(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 Supplemental
Retirement Benefit shall be payable for any days after the date of the
Executive's death.
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
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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.
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/ J. Xxxx Xxxxxx
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J. Xxxx Xxxxxx
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