EXHIBIT 10.1
SEPARATION AND GENERAL RELEASE AGREEMENT
This Separation and General Release Agreement ("Agreement") is entered
into by and between Brightpoint, Inc. ("Brightpoint" as defined in 1.b. below)
and Xxxxx Xxxxxxx ("Xxxxxxx").
WHEREAS, Xxxxxxx currently serves as Brightpoint's Executive Vice
President, Chief Financial Officer, and Treasurer; and
WHEREAS, Brightpoint and Xxxxxxx have determined that he is disabled
and can no longer provide services to Brightpoint; and
WHEREAS, Xxxxxxx has, or will be filing, a claim for benefits under the
Brightpoint, Inc. Long Term Disability Plan for Directors, Vice Presidents,
Presidents, and Chief Executive Officers ("LTD Plan"); and
WHEREAS, Brightpoint and Xxxxxxx have discussed Terence's separation
from his employment with Brightpoint and have reached an agreement regarding the
terms and conditions thereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Brightpoint and Xxxxxxx hereby agree as follows:
1. Definitions. Specific terms used in this Agreement have the
following meanings: (a) "Xxxxxxx" means Xxxxx Xxxxxxx, and anyone who has or
obtains any legal right or claims through him; and (b) "Brightpoint" means
Brightpoint, Inc., an Indiana corporation, Brightpoint North America L.P.,
Brightpoint North America, Inc., all of their past and present officers,
directors, employees, trustees, agents, related corporations, subsidiaries,
parents, 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, predecessors, successors, and assigns,
and all other entities, persons, firms, or corporations liable or who might be
claimed to be liable, none of whom admit any liability to Xxxxxxx, but all of
whom expressly deny any such liability.
2. Claims Released by Xxxxxxx. Except as specifically set forth
in this paragraph, the claims released by Xxxxxxx ("Terence's Claims") include
all of Terence's rights to any relief of any kind from Brightpoint, including
without limitation: (a) all claims Xxxxxxx has now, whether or not he now knows
about the claims, including, but not limited to, all claims arising directly or
indirectly out of or relating to his employment relationship with Brightpoint,
or the termination of said employment relationship, including, but not limited
to, any claims arising under the Fair Labor Standards Act; Title VII of the
Civil Rights Act of 1964; the Age Discrimination in Employment Act ("ADEA"); the
Older Worker Benefits Protection Act ("OWBPA"); the Employee Retirement Income
Security Act (other than in regard to claims that Xxxxxxx may have in connection
with the LTD Plan administered by Jefferson Pilot Financial Insurance Company);
the Family and Medical Leave Act; the Americans with Disabilities Act; Indiana
Civil Rights Law; all such laws as amended; and/or any other federal, state or
local law; (b) all claims under any principle of common law or equity, including
but not limited to, claims for alleged unpaid wages, bonus; other compensation,
separation or severance pay (other than as
specifically set forth in this Agreement); any tort; breach of contract; any
claim under any stock option plan (other than in regard to Terence's stock
options and restricted stock unit awards that vest, according to their terms,
prior to April 22, 2006); and any claim under any other severance or separation
benefit plan; and (c) all claims or rights he may have under any and all
employment agreements entered into between Xxxxxxx and Brightpoint, and all
claims for any type of relief from Brightpoint, and all claims for costs and
attorneys' fees. However, Terence's Claims do not include any rights or claims
under the ADEA or OWBPA which may arise after the Effective Date of this
Agreement (the "Effective Date" is that date occurring seven (7) calendar days
after Xxxxxxx signs this Agreement, on the condition that this Agreement is not
revoked by Xxxxxxx within such seven (7) calendar day period, as described
below).
3. The Parties' Agreements and Terence's Agreement to Resign and
Separate from Brightpoint's Employment. Xxxxxxx hereby agrees to: (a) release
Terence's Claims; (b) resign his employment with Brightpoint, effective April
22, 2006 (and his execution of this Agreement constitutes such resignation with
effect from April 22, 2006); (c) resign, effective June 30, 2005, from all
offices that he currently holds with Brightpoint, including, but not limited to,
the offices of Executive Vice President, Chief Financial Officer, and Treasurer
(and his execution of this Agreement constitutes such resignation with effect
from June 30, 2005); and (d) execute a release and waiver of claims on the
Separation Date, which agreement shall be prepared by Brightpoint and shall
release Brightpoint from any and all claims and actions that Xxxxxxx may have
through the Separation Date. In addition, the parties agree that the Employment
Agreement entered into between Brightpoint and Xxxxxxx, dated April 22, 2002,
and amended from time to time thereafter, is hereby terminated by mutual
agreement of the parties, and neither party shall have any right or obligation
under said agreement, as amended.
In consideration of the foregoing, Brightpoint hereby agrees as
follows:
(a) It shall retain Xxxxxxx in its employ, with disability status,
through April 22, 2006 (said date is referred to in this
Agreement as the "Separation Date");
(b) It shall place Xxxxxxx on disability status commencing July 1,
2005, and he shall remain employed by Brightpoint and on such
status through the Separation Date, during which period he
shall receive One Thousand Dollars ($1,000) per full calendar
month, payable in arrears, from Brightpoint, less applicable
taxes and other required deductions, and pro-rated for partial
calendar months of employment;
(c) During the period of Terence's disability status (July 1,
2005, through the Separation Date), Xxxxxxx shall retain his
eligibility for coverage under Brightpoint's health insurance
plan in accordance with the terms thereof, as amended from
time to time; and
(d) In regard to the stock options to purchase shares of stock in
Brightpoint that were granted to Xxxxxxx prior to June 30,
2005, such stock options shall vest pursuant to the terms and
conditions of the stock option agreements and the Brightpoint
1994 Stock Option Plan, as amended, and it is acknowledged
that any such vested options may be exercised pursuant to the
terms and conditions of said plan, as it
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may be amended from time to time. In regard to the restricted
stock unit awards that were granted to Xxxxxxx prior to June
30, 2005, such restricted stock unit awards shall vest
pursuant to the terms and conditions of the restricted stock
unit award agreements and the Brightpoint 2004 Long-Term
Incentive Plan, and it is acknowledged that any such vested
restricted stock unit awards may be retained pursuant to the
terms and conditions of said plan, as it may be amended from
time to time.
(e) It shall pay Xxxxxxx Two Hundred and Seventy Five Thousand
Three Hundred Thirty Three Dollars ($275,333), less taxes and
other withholdings, and such amount shall be paid to Xxxxxxx
as soon as practical after the Effective Date of this
Agreement.
In consideration of the foregoing payments and other consideration,
Xxxxxxx further agrees to give up, release, and waive all of Terence's Claims
against Brightpoint as described above. Xxxxxxx also agrees to give up, release,
and waive all other actions, causes of action, claims or demands that he may
have against Brightpoint. He further agrees that he shall not bring any lawsuits
against Brightpoint relating to the claims that he has given up, released, and
waived, nor will Xxxxxxx allow any suit to be brought on his behalf. The
agreement of Brightpoint described above constitutes full and fair consideration
for the release of Terence's Claims. Xxxxxxx also agrees that in further
consideration of the above, he shall provide, throughout his remaining
employment with Brightpoint and for a period of ninety (90) days thereafter,
timely and satisfactory assistance in regard to the transition of business
matters within his areas of responsibility. He shall also respond in a timely
and effective manner to any reasonable questions he may receive from Brightpoint
with regard to any matters within his knowledge or areas of responsibility
during his employ by Brightpoint. He further acknowledges that such assistance
may be needed with regard to transition or other ongoing matters. Xxxxxxx agrees
to fully and timely cooperate with Brightpoint's requests for such assistance.
In addition, Xxxxxxx acknowledges and agrees that in regard to any pending
litigation or other legal matters which he may be involved in currently or in
the future as a result of or arising out of his employment with Brightpoint, he
shall fully cooperate with Brightpoint and he shall not take any action that
might subject Brightpoint to financial harm or embarrassment Xxxxxxx also agrees
that his rights under the aforementioned statutes and any other federal, state,
or local law, rule or regulation are effectively waived by this Agreement.
4. Date of Resignation. As stated above, Xxxxxxx agrees that this
Agreement shall constitute his resignation of employment with Brightpoint,
effective April 22, 2006, and his resignation from all offices he currently
holds with Brightpoint, including, but not limited to, the offices of Executive
Vice President, Chief Financial Officer, and Treasurer, effective June 30, 2005.
Xxxxxxx relinquishes any and all rights to employment with Brightpoint after the
Separation Date.
5. Non-Disparagement/Return of Brightpoint Property. Each party
agrees that he/it shall not make any false, negative or disparaging remarks or
comments to any other person and/or entity about the other party. Furthermore,
at no time during his employment or thereafter shall Xxxxxxx, directly or
indirectly, disparage the commercial, business or financial reputation of
Brightpoint. Xxxxxxx also agrees that, as soon as practical after July 1, 2005,
he shall return to
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Brightpoint all of Brightpoint's property that is in his possession or control
(however, the parties agree that Xxxxxxx may retain an HTC device and his Nokia
7600 mobile telephone). Except as provided above in regard to the HTC device and
his Nokia telephone, the property to be returned to Brightpoint by Xxxxxxx
includes, but is not limited to, documents, records, notebooks, equipment, price
lists, specifications, programs, customer and prospective customer lists, other
materials which refer or relate to any aspect of Brightpoint's business which
are in Terence's possession, credit cards, phone cards, pagers, office keys,
directories, computer hardware and software, books, memoranda, and all other
records, and copies thereof.
6. Additional Agreements and Understandings of the Parties.
(a) Even though Brightpoint shall provide consideration to Xxxxxxx
under this Agreement, Brightpoint does not admit that it is responsible or
legally obligated to him. Brightpoint denies that it is responsible or legally
obligated to Xxxxxxx for any matter or in connection with Terence's Claims.
(b) Brightpoint and Xxxxxxx acknowledge and agree that the
services Xxxxxxx performed for Brightpoint were unique and extraordinary and, as
a result of such employment, Xxxxxxx was and may continue to be in possession of
confidential information relating to the business practices of Brightpoint. The
term "confidential information" shall mean any and all information (verbal and
written) relating to Brightpoint or any of its affiliates, or any of their
respective activities, other than such information which can be shown by Xxxxxxx
to be in the public domain (such information not being deemed to be in the
public domain merely because it is embraced by more general information which is
in the public domain) other than as the result of breach of this paragraph 6,
including, but not limited to, information relating to: trade secrets, personnel
lists, financial information, research projects, services used, pricing,
customers, customer lists and prospects, product sourcing, marketing and selling
and servicing. Xxxxxxx agrees that he will not, during his remaining employment
with Brightpoint and the two (2) year period thereafter, directly or indirectly,
use, communicate, disclose or disseminate to any person, firm or corporation any
confidential information regarding the clients, customers or business practices
of Brightpoint acquired by him during his employment by Brightpoint, without the
prior written consent of Brightpoint, and Xxxxxxx also understands that he is
prohibited from misappropriating any trade secret (as defined for purposes of
Indiana law) at any time during his remaining employment and thereafter.
(c) Xxxxxxx hereby agrees that he shall not, during his remaining
employment and for a period of two (2) years following such employment, directly
or indirectly, take any action which constitutes an interference with or a
disruption of any of Brightpoint's business activities including, without
limitation, the solicitations of Brightpoint's customers, or persons listed on
the personnel lists of Brightpoint. The foregoing includes, but is not limited
to, any attempt by Xxxxxxx, directly or indirectly, to hire, offer to hire,
entice, solicit or in any other manner persuade or attempt to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of Brightpoint, including
Xxxxxxx (but only those suppliers existing during the time of his employment by
Brightpoint, or at the termination of his employment), to discontinue or alter
his, her or its relationship with Brightpoint.
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(d) Xxxxxxx agrees that all processes, technologies and inventions
("Inventions"), including new contributions, improvements, ideas and
discoveries, whether patentable or not, conceived, developed, invented or made
by him during his employment by Employer shall belong to Brightpoint, provided
that such Inventions grew out of his work with Brightpoint, are related in any
manner to the business (commercial or experimental) of Brightpoint or are
conceived or made on Brightpoint's time or with the use of Brightpoint's
facilities or materials. Xxxxxxx shall further: (i) promptly disclose such
Inventions to Brightpoint; (ii) assign to Brightpoint, without additional
compensation, all patent and other rights to such Inventions for the United
States and foreign countries; (iii) sign all papers necessary to carry out the
foregoing; and (iv) give testimony in support of his inventorship. If any
Invention is described in a patent application or is disclosed to third parties,
directly or indirectly, by Xxxxxxx within two (2) years after the Separation
Date, it is to be presumed that the Invention was conceived or made during the
period of Terence's employment by Brightpoint. In addition, Xxxxxxx agrees that
he will not assert any rights to any Invention as having been made or acquired
by him prior to the date of this Agreement, except for Inventions, if any,
disclosed to Brightpoint in writing prior to the date hereof. Furthermore, the
parties agree that Brightpoint is the sole owner of all products and proceeds of
Terence's services to Brightpoint, including, but not limited to, all materials,
ideas, concepts, formats, suggestions, developments, arrangements, packages,
programs and other intellectual properties that Xxxxxxx may have acquired,
obtained, developed or created in connection with and during his employment with
Brightpoint, free and clear of any claims by Xxxxxxx (or anyone claiming under
Xxxxxxx) of any kind or character whatsoever. Xxxxxxx shall, at the request of
Brightpoint, execute such assignments, certificates or other instruments as
Brightpoint may from time to time deem necessary or desirable to evidence,
establish, maintain, perfect, protect, enforce or defend its right, or title and
interest in or to any such properties. The parties also hereby acknowledge and
agree that: (i) Brightpoint would be irreparably injured in the event of a
breach by Xxxxxxx of any of his obligations under this paragraph 6, (ii)
monetary damages would not be an adequate remedy for any such breach, and (iii)
Brightpoint shall be entitled to injunctive relief, in addition to any other
remedy which it may have, in the event of any such breach. The parties hereto
hereby acknowledge that, in addition to any other remedies Brightpoint may have,
Brightpoint shall have the right and remedy to require Xxxxxxx to account for
and pay over to Brightpoint all compensation, profits, monies, accruals,
increments or other benefits (collectively, "Benefits") derived or received by
him as the result of any transactions constituting a breach of any of the
provisions of paragraph 6, and Xxxxxxx hereby agrees to account for and pay over
such Benefits to Brightpoint. Each of the rights and remedies enumerated above
shall be independent of the other, and shall be severally enforceable, and all
of such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to Brightpoint under law or in equity. In
addition, if any provision contained in this paragraph 6 is hereafter construed
to be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid portions. Moreover, if any provision contained in this paragraph 6 is
found to be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determination shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby. It
is the intent of the parties hereto that the covenants contained in this
paragraph 6 shall be enforced to the fullest extent permissible under the laws
and public policies of each jurisdiction in which enforcement is sought (Xxxxxxx
hereby acknowledging that said restrictions are reasonably necessary for the
protection of Brightpoint).
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(e) Brightpoint shall indemnify and hold harmless Xxxxxxx against
any and all expenses reasonably incurred by him in connection with or arising
out of: (i) the defense of any action, suit or proceeding in which he is a
party, or (ii) any claim asserted or threatened against him, in either case by
reason of or relating to his being or having been an employee, officer or
director of Brightpoint, whether or not he continues to be such an employee,
officer or director at the time of incurring such expenses, except insofar as
such indemnification is prohibited by law. Such expenses shall include, without
limitation, the fees and disbursements of attorneys, amounts of judgments and
amounts of any settlements, provided that such expenses are agreed to in advance
by Brightpoint. The foregoing indemnification obligation is independent of any
similar obligation provided in Brightpoint's Certificate of Incorporation or
Bylaws, and shall apply with respect to any matters attributable to periods
prior to the Effective Date, and to matters attributable to his employment with
Brightpoint, without regard to when asserted.
7. Consultation with Attorney. Xxxxxxx understands that whether
or not he decides to actually consult an attorney is totally up to him. As
required by the ADEA and the OWBPA, Xxxxxxx acknowledges that Brightpoint has
advised him that he should consult with an attorney prior to signing this
Agreement, and Xxxxxxx has had an adequate opportunity to do so. Terence's
decision to sign this Agreement was voluntary and made after being given said
opportunity.
8. Confidentiality. Xxxxxxx understands that, as a 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 attorney or his spouse, or as required by law or
lawfully-issued subpoena.
9. Violation of Agreement and Severability. Xxxxxxx agrees that
if he violates this Agreement by suing or bringing any action against
Brightpoint for any of Terence's Claims (other than one under the ADEA or
OWBPA), Xxxxxxx will pay all costs and expenses of defending the action or
lawsuit incurred by Brightpoint, including but not limited to, reasonable
attorneys' fees, costs, disbursements, awards, and judgments. In addition, if
Xxxxxxx violates this Agreement by suing or bringing any action against
Brightpoint for any of Terence's Claims (other than one under the ADEA or
OWBPA), or in any other respect, Xxxxxxx will promptly reimburse Brightpoint the
amounts paid to him pursuant to this Agreement, plus legal interest, and
Brightpoint shall be entitled to collect same through legal process or
otherwise, from him. Xxxxxxx also understands, and it is his intent, that in the
event this Agreement is ever held to be invalid or unenforceable (in whole or in
part) as to any particular type of claim or charge or as to any particular
circumstances, it shall remain fully valid and enforceable as to all other
claims, charges, and circumstances. As to any actions, claims, or charges that
would not be released because of the revocation, invalidity, or unenforceability
of this Agreement (other than one under the ADEA or OWBPA), Xxxxxxx understands
that the return of the amounts paid to him pursuant to this Agreement, plus
legal interest, is a prerequisite to asserting or bringing any such claims,
charges, or actions. Notwithstanding any other provision of this Agreement,
Xxxxxxx acknowledges that he has the right to file a charge alleging a violation
of the ADEA and/or the OWBPA with any administrative agency and/or to challenge
the validity of the waiver and release of any claim he might have under the ADEA
without either: (a) repaying to Brightpoint the amounts paid by it to Xxxxxxx
under this Agreement; or (b) paying to Brightpoint any other monetary amounts
(such as attorney's fees and/or damages). However, although this Agreement
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shall not prohibit Xxxxxxx from challenging its validity under the OWBPA and/or
the ADEA, nothing in this Agreement shall be construed to prohibit the
Brightpoint from recovering from Xxxxxxx its attorney's fees and/or costs
specifically authorized under the ADEA or any other law. Furthermore, in the
event Xxxxxxx successfully challenges this Agreement under the OWBPA and
prevails on the merits in an ADEA action against the Brightpoint, Xxxxxxx agrees
that the court in such action may determine that the Brightpoint is entitled to
restitution, recoupment, or setoff (hereinafter "reduction") against any
monetary award. Moreover, Xxxxxxx agrees that the reduction in such ADEA action
shall not exceed the lesser of: (a) the amount recovered by Xxxxxxx in such
action; or (b) the amounts paid to him pursuant to this Agreement.
10. Period to Consider Agreement. As required by the ADEA and the
OWBPA, Xxxxxxx understands that he has twenty one (21) calendar days from the
day that he receives this Agreement, not counting the day upon which he received
it, to consider whether he wishes to sign this Agreement. If he 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. Xxxxxxx also understands that if
he does not deliver this Agreement to Brightpoint within said period of time, it
shall be deemed to be withdrawn by Brightpoint.
11. Terence's Right to Revoke Agreement. As required by the ADEA
and the OWBPA, Xxxxxxx 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. This Agreement will not become effective or enforceable
unless and until the seven (7) calendar day revocation period has expired
without revocation by Xxxxxxx.
12. Procedure to Accept or Revoke Agreement. To accept the terms
of this Agreement, Xxxxxxx must deliver the Agreement, after it has been signed
and dated by him, to Brightpoint by hand or by mail and it must be received by
Brightpoint within the twenty one (21) calendar day period that Xxxxxxx has to
consider this Agreement. To revoke his acceptance, Xxxxxxx must deliver a
written, signed statement that he revokes his acceptance to Brightpoint by hand
or by mail and any such notice of revocation must be received by Brightpoint
within seven (7) calendar days after Xxxxxxx signs the Agreement. All deliveries
shall be made to Brightpoint, marked "Personal and Confidential," at the
following address: Xxxxxxx Xxx, Brightpoint, Inc., 000 Xxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000. If Xxxxxxx chooses to deliver his acceptance or any
revocation notice by mail, it must be: (a) postmarked and received by
Brightpoint within the applicable period stated above; (b) properly addressed to
Brightpoint at the address stated above; and (c) sent by certified mail, return
receipt requested.
13. Terence's Representations. Xxxxxxx has read this Agreement
carefully and understands all of its terms. In agreeing to sign this Agreement,
Xxxxxxx has not relied on any statements or explanations made by Brightpoint,
except as specifically set forth in this Agreement. Xxxxxxx is voluntarily
releasing any claims against Brightpoint, and he understands that in
consideration of accepting the consideration described above, he may be giving
up possible future administrative and/or legal claims. Xxxxxxx also understands
and agrees that this Agreement contains all of the agreements between
Brightpoint and him relating to the matters included in this Agreement.
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14. Miscellaneous. This Agreement and the performance by the
parties hereunder shall be construed in accordance with the laws of the State of
Indiana, and any action or proceeding that may be brought, arising out of, in
connection with, or by reason of this Agreement shall be governed by the laws of
Indiana to the exclusion of the law of any forum, regardless of the jurisdiction
in which the action or proceeding may be instituted or pending. No amendment to
or modification of this Agreement shall be effective unless the amendment or
modification is in writing and signed on behalf of Brightpoint by the President
thereof and by Xxxxxxx. The parties agree that the language of all parts of the
Agreement shall be in all cases construed as a whole, according to its fair
meaning, and not strictly for or against the drafter. This Agreement may be
executed by the parties in one or more counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement, and shall become effective when one or more counterparts
has been signed by each of the parties hereto and delivered to each of the other
parties hereto.
Date: June 30, 2005 /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Date: June 30, 2005 Brightpoint, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Chairman of the Board and
Chief Executive Officer
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