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EXHIBIT 10.6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT dated as of July 1, 1999 between
BRIGHTPOINT, INC., a Delaware corporation (the "Employer" or the "Company"), and
XXXXXX X. XXXXX (the "Employee").
WHEREAS, the Employer and the Employee entered into an employment
agreement (the "Employment Agreement") on January 6, 1997, which was amended by
letter agreement dated July 16, 1998;
WHEREAS, Employer and Employee wish to amend the Employment Agreement
further and to restate such Employment Agreement to include all amendments made
to date;
NOW, THEREFORE, the Employer and Employee hereby amend and restate the
Employment Agreement to read in its entirety as follows:
WITNESSETH:
WHEREAS, the Employer desires to employ the Employee as its Executive
Vice President, General Counsel and Secretary to be assured of his services as
such on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on such
terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Employer and the Employee hereby agree as follows:
I. Term. Employer hereby agrees to employ Employee, and Employee
hereby agrees to serve Employer for a three-year period commencing effective as
of the date of this Agreement (the "Effective Date") (such period being herein
referred to as the "Initial Term," and any year commencing on the Effective Date
or any anniversary of the Effective Date being hereinafter referred to as an
"Employment Year"). After the Initial Term and on the last day of any Employment
Year thereafter, this Agreement shall be automatically renewed for successive
one year periods (each such period being referred to as a "Renewal Term"),
unless, more than ninety (90) days prior to the expiration of the Initial Term
or any Renewal Term, either the Executive or the Company gives written notice
that employment will not be renewed ("Notice of Non-Renewal"), whereupon (i) if
the Executive gives the Notice of Non-Renewal, the term of the Executive's
employment shall terminate upon the expiration of the Initial Term or the then
current Renewal Term, as the case may be, or (ii) if the Company gives the
Notice of Non-Renewal or terminates this Agreement without Cause, the term of
the Executive's employment shall be for a final three (3) 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.
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II. Employee Duties.
A. During the term of this Agreement, the Employee shall have the
duties and responsibilities attached hereto as Exhibit A, reporting directly to
the President of Employer and the Board of Directors of the Employer (the
"Board"). It is understood that such duties and responsibilities shall be
reasonably related to the Employee's position.
B. The Employee shall devote substantially all of his business time,
attention, knowledge and skills faithfully, diligently and to the best of his
ability, in furtherance of the business and activities of the Company. The
principal place of performance by the Employee of his duties hereunder shall be
the Company's principal executive offices, although the Employee may be required
to travel outside of the area where the Company's principal executive offices
are located in connection with the business of the Company.
III. Compensation.
A. During the term of this Agreement, the Employer shall pay the
Employee a salary (the "Salary") at a rate of $175,000 per annum in respect of
each Employment Year, payable in equal monthly installments on the first day of
each month, or at such other times as may mutually be agreed upon between the
Employer and the Employee. Such Salary may be increased from time to time at the
discretion of the Board.
B. In addition to the foregoing, the Employee shall be entitled to
such other cash bonuses and such other compensation in the form of stock, stock
options or other property or rights as may from time to time be awarded to him
by the Board during or in respect of his employment hereunder.
IV. Benefits.
A. During the term of this Agreement, the Employee shall have the
right to receive or participate in all existing and future benefits and plans
which the Company may from time to time institute during such period for its
executive officers (the "Executive Officers") and for which the Employee is
eligible. Nothing paid to the Employee under any plan or arrangement presently
in effect or made available in the future shall be deemed to be in lieu of the
salary or any other obligation payable to the Employee pursuant to this
Agreement.
B. During the term of this Agreement, the Employee will be entitled
to the number of paid holidays, personal days off, paid vacation days and sick
leave days in each calendar year as are determined by the Company from time to
time. Such paid vacation may be taken in the Employee's discretion with the
prior approval of the Employer, and at such time or times as are not
inconsistent with the reasonable business needs of the Company.
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V. Travel Expenses. All travel and other expenses incident to the
rendering of services reasonably incurred on behalf of the Company by the
Employee during the term of this Agreement shall be paid by the Employer
provided that such expenses are incurred in accordance with the Company's
policies. If any such expenses are paid in the first instance by the Employee,
the Employer shall reimburse him therefor on presentation of appropriate
receipts for any such expenses.
VI. Termination. Employee's employment under this Agreement may be
terminated without any breach of this Agreement only on the following
circumstances:
6.1. Death. The Employee's employment under this Agreement shall
terminate upon his death.
6.2. Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his duties
under this Agreement for 180 consecutive calendar days during any calendar year,
the Employer may terminate the Employee's employment under this Agreement.
6.3. Cause. The Employer may terminate the Employee's employment under
this Agreement for Cause. For purposes of this Agreement, the Employer shall
have "Cause" to terminate the Employee's employment under this Agreement upon
(a) the willful and continued failure by the Employee to substantially perform
his duties under this Agreement (other than any such failure resulting from the
Employee's incapacity due to physical or mental illness) after demand for
substantial performance is delivered by the Employer, in writing, specifically
identifying the manner in which the Employer believes the Employee has not
substantially performed his duties and the Employee fails to perform as required
within 30 days after such demand is made, (b) the willful engaging by the
Employee in criminal misconduct (including embezzlement and criminal fraud)
which is materially injurious to the Employer, monetarily or otherwise or (c)
the conviction of the Employee of a felony and the expiration of the time to
appeal such conviction. For purposes of this paragraph, no act, or failure to
act, on the Employee's part shall be considered "willful" unless done, or
omitted to be done, by him not in good faith and without reasonable belief that
his action or omission was in the best interest of the Employer.
Notwithstanding the foregoing, the Employee shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered
to the Employee a copy of a resolution, duly adopted by the affirmative vote of
not less than three-quarters of the entire membership of the Board (other than
the Employee) at a meeting of the Board called and held for such purpose (after
reasonable written notice to the Employee and an opportunity for him, together
with his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board, the Employee was guilty of conduct set forth above in
clause (a), (b) or (c), and specifying the particulars thereof in detail.
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6.4. Termination by the Employee for Good Reason, Upon a Change of
Control or Because of Ill Health. The Employee may terminate his employment
under this Agreement (a) for Good Reason (as hereinafter defined), (b) at any
time within twelve months after a Change of Control, or (c) if his health should
become impaired to any extent that makes the continued performance of his duties
under this Agreement hazardous to his physical or mental health or his life,
provided that, in the latter case, the Employee shall have furnished the
Employer with a written statement from a qualified doctor to such effect and
provided, further, that at the Employer's request and expense the Employee shall
submit to an examination by a doctor selected by the Employer and such doctor
shall have concurred in the conclusion of the Employee's doctor; provided if the
Employer's doctor does not concur, the Employee's and Employer's doctors shall
select a third physician whose determination shall be binding.
6.4.1. Good Reason. For purposes of this Agreement, "Good
Reason" shall mean (a) any assignment to the Employee of any duties or reporting
obligations other than those contemplated by, or any limitation of the powers of
the Employee in any respect not contemplated by, this Agreement, (b) failure by
the Employer to comply with its obligations and agreements contained in this
Agreement, (c) failure of the Employer to obtain the assumption of the agreement
to perform this Agreement by any successor as contemplated in Section 9(g) of
this Agreement. With respect to the matters set forth in clauses (a), (b) and
(c) of this paragraph, the Employee must give the Employer 30 days prior written
notice of his intent to terminate this Agreement as a result of any breach or
alleged breach of the applicable provision and the Employer shall have the right
to cure any such breach or alleged breach within such 30 day period.
6.4.2. Change of Control. For purposes of this Agreement, a
"Change of Control" shall be deemed to occur, unless previously consented to in
writing by the Employee, upon (a) individuals who, as of the date hereof,
constitute the Board of Directors of the Employer (the "Incumbent Board")
ceasing for any reason to constitute at least a majority of the Board of
Directors of the Employer (the "Board"); provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Employer's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs in connection with a Combination, as defined below, or as a result
of either an actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the
Board; (b) the acquisition of beneficial ownership (as determined pursuant to
Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the voting
securities of the Employer by any person, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) not affiliated with the
Employee or the Employer; provided, however, that no Change of Control shall be
deemed to have occurred for purposes of this
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Agreement if such person, entity or group acquires beneficial ownership of 15%
or more of the voting securities of the Employer (i) as a result of a
combination of the Employer or a wholly-owned subsidiary of the Employer with
such person, entity or group or another entity owned or controlled by such
person, entity or group (whether effected by a merger, consolidation, sale of
assets or exchange of stock or otherwise) (a "Combination") and (ii) (x)
executive officers of the Employer (as designated by the Board for purposes of
Section 16 of the Exchange Act) immediately prior to the Combination constitute
not less than 50% of the executive officers of the Employer for a period of not
less than six (6) months 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),
and (y) the members of the Incumbent Board immediately prior to the Combination
constitute not less than 50% of the membership of the Board after the
Combination and (z) after the Combination, more than 35% of the voting
securities of the Employer is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the
beneficial owners of the outstanding voting securities of the Employer
immediately prior to the Combination, it being understood that while the
existence of a Change in Control pursuant to this Section 6.4.2(b) may not be
ascertainable for six (6) months after the Combination, if it is ultimately
determined that such Combination constituted a Change in Control, the date of
the Change of Control shall be the effective date of the Combination; (c) the
commencement of a proxy contest against the management for the election of a
majority of the Board of the Employer if the group conducting the proxy contest
owns, has or gains the power to vote at least 15% of the voting securities of
the Employer; (d) the consummation of a reorganization, merger or consolidation,
or the sale, transfer or conveyance of all or substantially all of the assets of
the Employer to any person or entity not affiliated with the Employee or the
Employer unless, following such reorganization, merger, consolidation, sale,
transfer or conveyance, the conditions set forth in clause (b)(ii) above are
present; or (e) the complete liquidation or dissolution of the Employer.
VII. Notice of Termination.
Any termination of the Employee's employment by the Employer or by the
Employee (other than termination by reason of the Employee's death) shall be
communicated by written Notice of Termination to the other party of this
Agreement. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
VIII. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's employment
is terminated by his death, the date of his death, (b) if the Employee's
employment is terminated
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pursuant to Section 6.2 above, the date on which the Notice of Termination is
given, (c) if the Employee's employment is terminated pursuant to Section 6.3
above, the date specified on the Notice of Termination after the expiration of
any cure periods and (d) if the Employee's employment is terminated for any
other reason, the date on which a Notice of Termination is given after the
expiration of any cure periods.
IX. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by reason of his
death, the Employer shall pay to such person as he shall designate in writing
filed with the Employer, or if no such person shall be designated, to his estate
as a lump sum benefit, his full Salary to the date of his death in addition to
any payments the Employee's spouse, beneficiaries or estate may be entitled to
receive pursuant to any pension or employee benefit plan or life insurance
policy or similar plan or policy then maintained by the Employer, and such
payments shall, assuming the Employer is in compliance with the provisions of
this Agreement, fully discharge the Employer's obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the
Employee shall continue to receive his Salary until the Employee's employment is
terminated pursuant to Section 6.2 of this Agreement, or until the Employee
terminates his employment pursuant to Section 6.4(c) of this Agreement,
whichever first occurs. After termination, the Employee shall be paid, in equal
monthly installments, 100% of his Salary, at the rate in effect at the time
Notice of Termination is given, for one year, and thereafter for one additional
year at an annual rate equal to 50% of the Salary which would have been in
effect under this Agreement, plus, in each case, any disability payments
otherwise payable by or pursuant to plans provided by the Employer to its
executive officers. To the extent physically and mentally capable of so doing
without potentially impairing or damaging his health, the Employee shall provide
consulting services to the Employer during the period that he is receiving
payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or
terminated by the Employee without Good Reason prior to or more than twelve
months after, a Change of Control, the Employer shall pay the Employee his full
Salary through the Date of Termination, at the rate in effect at the time Notice
of Termination is given, and the Employer shall, assuming the Employer is in
compliance with the provisions of this Agreement, have no further obligations
with respect to Section 3 of this Agreement, but all other obligations of the
Employer under this Agreement, including the obligations to indemnify, defend
and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate
the
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Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it
being 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), including as a
result of a Change of Control, or (B) the Employee shall terminate his
employment for Good Reason or at any time within twelve months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu
of any further payments pursuant to Section 3 of this Agreement), Severance Pay
(as hereinafter defined), payable on the first day following the Date of
Termination, as follows:
(A) if the Employee, without Good Reason, terminates his
employment at any time within twelve months after a Change of Control (provided
that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement,
it is ascertainable on the date of such Termination that such Change of Control
has occurred), or if, prior to and not as a result of a Change of Control, the
Employee's employment is terminated either by the Employee for Good Reason or by
the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to the highest of (a) $525,000 or (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 three (3), or
(B) if after or as a result of a Change of Control, the
Employee's employment is terminated either by the Employee for Good Reason or by
the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to six (6) times: (i) the total compensation received or earned
(including the value of all perquisites, such as health and life insurance and
car allowance, etc.) and (ii) the value of all stock options granted to the
Employee by the Employer, during the twelve (12) months prior to such Date of
Termination (in case of either (ii)(A) or (ii)(B), "Severance Pay"); and
(iii) all other damages to which the Employee may be entitled as
a matter of law or equity as result of the termination of his employment under
this Agreement, including all costs and expense and expenses incurred by him
(including attorneys fees) in contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit provided by this Agreement.
(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
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both Company and Employee. The fees for such valuation will be paid by the
Company.
(e) The amount (if any) payable pursuant to this Section 9(d) (the
"Severance Total") shall be increased by an amount (the "Increase") sufficient
so that after the payment by the Employee of (A) any income taxes on the
Increase and (B) any excise tax on the sum of (I) the Severance Total and (II)
the Increase, the Employee shall have received an amount (net of such taxes)
equal to the Severance Total. The Employee shall be entitled to receive
initially the entire Severance Total (together with any such additional payments
required to cover any excise and income taxes payable as aforesaid) and shall
not be required to repay to the Employer any amount which is ultimately and
finally determined by the Internal Revenue Service (or an appropriate court) to
have been in excess of the amount permitted to be received without incurring
such excise tax, and Employer agrees to use its best efforts to support the
Employee's position that such amounts are not subject to excise tax in any
dispute with the Internal Revenue Service or in any other administrative or
judicial proceedings.
(f) The Employee shall not be required to mitigate the amount of any
payment provided for in this Section 9 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 9 be reduced by
any compensation earned by the Employee as the result of employment by another
employer or business or by profits earned by the Employee from any other source
at any time before and after the Date of Termination.
(g) The Employer 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 Employer, by agreement in
form and substance satisfactory to the Employee, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such Agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his
employment for Good Reason, except for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed the Date
of Termination. As used in this Agreement, "Employer" shall mean the Employer
and any successor to its business and/or assets which executes the Agreement or
which otherwise becomes bound by the terms and conditions of this Agreement by
operation of law.
(h) (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 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 Employer and
Employee, all unvested stock
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options granted by the Employer to the Employee pursuant to such agreement shall
immediately vest and become exercisable and shall remain exercisable for not
less than 180 days thereafter.
X. Confidentiality; Noncompetition.
A. The Employer and the Employee acknowledge that the services to be
performed by the Employee under this Agreement are unique and extraordinary and,
as a result of such employment, the Employee will be in possession of
confidential information relating to the business practices of the Company. The
term "confidential information" shall mean any and all information (verbal and
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by the
Employee 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 the
provisions of this Section 10(a), 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. The Employee agrees that
he will not, during or for a period of two years after the termination of
employment, 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 the Company acquired by the Employee
during his employment by Employer, without the prior written consent of
Employer; provided, however, that the Employee understands that Employee will be
prohibited from misappropriating any trade secret (as defined for purposes of
Indiana law) at any time during or after the termination of employment.
B. The Employee hereby agrees that he shall not, during the period
of his employment and for a period of two (2) years following such employment,
directly or indirectly, within any county (or adjacent county) in any State
within the United States or territory outside the United States in which the
Company is engaged in business during the period of the Employee's employment or
on the date of termination of the Employee's employment, engage, have an
interest in or render any services to any business (whether as owner, manager,
operator, licensor, licensee, lender, partner, stockholder, joint venturer,
employee, consultant or otherwise) competitive with the Company's principal
business activities. Notwithstanding the foregoing, Employee shall be permitted
to own (as a passive investment) not more than 5% of any class of securities
which is publicly traded; provided, however that said 5% limitation shall apply
to the aggregate holdings of Employee and those of all other persons and
entities with whom Employee has agreed to act for the purpose of acquiring,
holding, voting or disposing of such securities.
C. The Employee hereby agrees that he shall not, during the period
of his 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 the Company's
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business activities including, without limitation, the solicitations of the
Company's customers, or persons listed on the personnel lists of the Company. At
no time during the term of this Agreement, or thereafter shall the Employee
directly or indirectly, disparage the commercial, business or financial
reputation of the Company.
D. For purposes of clarification, but not of limitation, the
Employee hereby acknowledges and agrees that the provisions of subparagraphs
10(b) and (c) above shall serve as a prohibition against him, during the period
referred to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of the Company, including
the Employee, (but only those suppliers existing during the time of the
Employee's employment by the Company, or at the termination of his employment),
to discontinue or alter his, her or its relationship with the Company.
E. Upon the termination of the Employee's employment for any reason
whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Employee including all copies thereof, shall
be promptly returned to the Company.
F. 1. The Employee 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 the Company, provided
that such Inventions grew out of the Employee's work with the Company, are
related in any manner to the business (commercial or experimental) of the
Company or are conceived or made on the Company's time or with the use of the
Company's facilities or materials. The Employee shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of his inventorship;
2. If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Employee within two
years after the termination of his employment by the Company, it is to be
presumed that the Invention was conceived or made during the period of the
Employee's employment by the Company; and
3. The Employee 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 the Company in writing
prior to the date hereof.
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G. The Company shall be the sole owner of all products and proceeds
of the Employee's services hereunder, including, but not limited to, all
materials, ideas, concepts, formats, suggestions, developments, arrangements,
packages, programs and other intellectual properties that the Employee may
acquire, obtain, develop or create in connection with and during the term of the
Employee's employment hereunder, free and clear of any claims by the Employee
(or anyone claiming under the Employee) of any kind or character whatsoever
(other than the Employee's right to receive payments hereunder). The Employee
shall, at the request of the Company, execute such assignments, certificates or
other instruments as the Company 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.
H. The parties hereto hereby acknowledge and agree that (i) the
Company would be irreparably injured in the event of a breach by the Employee of
any of his obligations under this Section 10, (ii) monetary damages would not be
an adequate remedy for any such breach, and (iii) the Company shall be entitled
to injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach.
I. The parties hereto hereby acknowledge that, in addition to any
other remedies the Company may have under Section 10(h) hereof, the Company
shall have the right and remedy to require the Employee to account for and pay
over to the Company all compensation, profits, monies, accruals, increments or
other benefits (collectively, "Benefits") derived or received by the Employee as
the result of any transactions constituting a breach of any of the provisions of
Section 10, and the Employee hereby agrees to account for and pay over such
Benefits to the Company.
J. Each of the rights and remedies enumerated in Section 10(h) and
10(i) 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 the Company under law or in equity.
K. If any provision contained in this Section 10 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.
L. If any provision contained in this Section 10 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.
M. It is the intent of the parties hereto that the covenants
contained in this Section 10 shall be enforced to the fullest extent permissible
under the laws and public policies of
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each jurisdiction in which enforcement is sought (the Employee hereby
acknowledging that said restrictions are reasonably necessary for the protection
of the Company). Accordingly, it is hereby agreed that if any of the provisions
of this Section 10 shall be adjudicated to be invalid or unenforceable for any
reason whatsoever, said provision shall be (only with respect to the operation
thereof in the particular jurisdiction in which such adjudication is made)
construed by limiting and reducing it so as to be enforceable to the extent
permissible, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of said provision in any other
jurisdiction.
XI. Indemnification. The Employer shall indemnify and hold harmless
the Employee against any and all expenses reasonably incurred by him in
connection with or arising out of (a) the defense of any action, suit or
proceeding in which he is a party, or (b) 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 the Company, 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 the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer'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 hereunder, without regard to when asserted.
XII. General. This Agreement is further governed by the following
provisions:
A. Notices. All notices relating to this Agreement shall be in
writing and shall be either personally delivered, sent by telecopy (receipt
confirmed) or mailed by certified mail, return receipt requested, to be
delivered at such address as is indicated below, or at such other address or to
the attention of such other person as the recipient has specified by prior
written notice to the sending party. Notice shall be effective when so
personally delivered, one business day after being sent by telecopy or five days
after being mailed.
To the Employer: Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
To the Employee: Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xxx
Xxxxxx, Xxxxxxx 00000
With, in either case, a copy in the same manner to:
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Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
B. Parties in Interest. Employee may not delegate his duties or
assign his rights hereunder. This Agreement shall inure to the benefit of, and
be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
C. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Employee by the Employer and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever. Any modification or termination of this Agreement will be
effective only if it is in writing signed by the party to be charged.
D. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana. Employee agrees to and
hereby does submit to jurisdiction before any state or federal court of record
in Xxxxxx County, Indiana, or in the state and county in which such violation
may occur, at Employer's election.
E. Warranty. Employee hereby warrants and represents as follows:
1. That the execution of this Agreement and the discharge of
Employee's obligations hereunder will not breach or conflict with any other
contract, agreement, or understanding between Employee and any other party or
parties.
2. Employee has ideas, information and know-how relating to the
type of business conducted by Employer, and Employee's disclosure of such ideas,
information and know-how to Employer will not conflict with or violate the
rights of any third party or parties.
F. Severability. In the event that any term or condition in this
Agreement shall for any reason be held by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other term or condition of this
Agreement, but this Agreement shall be construed as if such invalid or illegal
or unenforceable term or condition had never been contained herein.
G. Execution in Counterparts. 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ J. Xxxx Xxxxxx
------------------------------------
J. Xxxx Xxxxxx, President & COO
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
14
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EXHIBIT "A"
DUTIES AND RESPONSIBILITIES
Legal representation of the Company, its affiliates, subsidiaries, successors
and assigns, in all legal matters. Approval and appointment of outside counsel
to represent the Company in any and all legal matters. Maintenance of the
corporate minute books and records of the Company, its affiliates, subsidiaries,
successors and assigns. Including, but not limited to, the following duties and
responsibilities:
CORPORATE STRATEGIES Assists in the definition and develops corporate
strategies, policies, procedures and programs. Provides counsel and
guidance on legal implications of all matters to the Board of
Directors and members of executive management of the Company. Converts
Company strategies and policies into specific objectives and monitors
the accomplishment of such objectives.
LEGAL ISSUES. Reconciles and determines the legal position in major legal
matters. Reviews, evaluates and analyzes other obligations of the
Company, and advises the Company with the legal risk associated with
such contracts and obligations prior to the Company becoming a party
or otherwise becoming legally bound. Assesses the merits of potential
litigation matters or actual court cases filed against the Company and
approves settlement of such court cases.
BUDGET. Determines the budget for the Legal Department and monitors the
administration of the current budget. Evaluates the legal risks to
which the Company may be exposed in order to allow these risks to be
accurately reflected in the Company's financial statements.
BOARD OF DIRECTORS. Advises the Board of Directors and other members of the
Company's executive management of the impact on the activities and
proposed activities of the Company of proposed local, state and
Federal laws and regulations and judicial and administrative
decisions.
POLICIES AND RECORDS. Provides legal consulting in policy development and
training with regard to preventative law. Guides and directs the
preparation and maintenance of the records of the Company.
SPECIAL PROJECTS. Undertakes special projects as assigned dependent upon
knowledge or experience.
CLIENTS. Advises clients, in keeping with the Company's values, strategies,
goals and principles, with respect to all legal aspects of matter
management.
OUTSIDE AGENCIES. Represents the Company in dealings with outside law
firms, government representatives and agencies, independent technical
experts and others in the legal profession.
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