Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, effective July 1, 0000, xxxxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxx L.P., an Indiana corporation (the "Employer" or the "Company"),
and Xxxxxxx X. Xxxx (the "Employee" or "Executive"). The Employer desires to
employ the Employee as its Senior Vice President and Chief Financial Officer for
Brightpoint Americas, and the parties acknowledge and agree that the Employee
shall also serve as the acting Chief Financial Officer and Treasurer of of
Brightpoint, Inc., and the Employee desires to accept such employment on the
terms and conditions hereinafter set forth. The parties hereby agree as follows:
I. Term. The Employer hereby agrees to employ the Employee,
and he hereby agrees to serve Employer for a one-year period commencing
effective as of July 1 1, 2005 (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 one (1) year
(each such period being referred to as a "Renewal Term"), unless written notice
of the intent not to renew is provided to the Employee by the Employer at least
thirty (30) days before the commencement of any Renewal Term.
II. Employee Duties. During the term of this Agreement, the
Employee shall have such duties and responsibilities as reasonably determined by
the Company. The parties understand that the Employee's job title (including,
but not limited to, any "acting" title) and duties may be modified by the
Company, consistent with its business needs. The Employee also agrees that he
shall devote substantially all of his time, knowledge and skills diligently and
to the best of his ability in furtherance of the Company's business.
III. Compensation. During the Initial Term, the Employer shall
pay the Employee a salary (the "Salary") at a rate of Two Hundred Thousand
Dollars ($200,000) per annum in respect of each Employment Year, payable in
equal monthly installments (and pro-rated for the first calendar year of
employment). Such Salary may be modified after the Initial Term at the
discretion of the Company. In addition to the foregoing, the Employee shall be
eligible for a bonus, which may be paid at the sole discretion of the Company
and consistent with the terms of any of the Company's bonus programs, as it may
be establish, from time to time by the Company. The parties understand that the
bonus is not guaranteed. During the period in which the Employee serves as the
acting Chief Financial Officer and Treasurer of Brightpoint, Inc., he shall be
eligible to participate in the Executive Equity Program under Brightpoint, Inc.
2004 Long-Term Incentive Plan, consistent with its eligibility requirements and
other terms and conditions, as amended from time to time by the Company.
IV. Benefits. During the term of Employee's employment with
the Company, he shall have the right to participate in such benefit plans as the
Company may from time to time institute for its regular employees, and his
participation shall be in accordance with the eligibility requirements of such
plans. The parties acknowledge and agree that such plans may be amended
periodically by the Company at its discretion. The parties acknowledge that such
plans currently include medical, dental, life insurance, and the Company's
401(k) plan. Paid time off may be taken with the Employer's prior approval, and
consistent with the Employer's paid time off
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policy, and the Employee shall schedule time off so that it does not interfere
with the fulfillment of his duties and responsibilities.
V. Termination. Employee's employment and this Agreement may
be terminated by the Company in the event of the following circumstances: (1)
the Employee's death; (2) if, as a result of the Employee's physical or mental
disability (which can not be reasonably accommodated), for a period greater than
ninety (90) days, he can not perform all of the essential functions of his
position; or (3) upon notice to the Employee, with or without Cause. For
purposes of this Agreement, the Employer shall have "Cause" to terminate the
Employee's employment under this Agreement in the event of: (a) the Employee's
failure to satisfactorily perform his duties and responsibilities as determined
by the Company, or his failure to meet the Company's expectations in the
performance of his duties and responsibilities as determined by the Company; (b)
the Employee's commission of any act which the Company determines constitutes
dishonest behavior or misconduct (including, but not limited to, any action that
may or does result in embarrassment or harm to the Company); the Employee's
negligence or malfeasance; or the Employee's failure to follow the Company's
rules, policies, or procedures; or (c) the Employee's conviction for a crime or
the filing of criminal charges against him. Any event or circumstances deemed by
the Employer to constitute "cause" for termination of the Employee shall not
constitute "cause" unless and until: (a) a description of the event or
circumstances is provided, in writing, to the Employee by the Employer; and (b)
such event or circumstances are not cured by the Employee to the satisfaction of
the Employer within fifteen (15) days after written notice is given to the
Employee. The Employer shall have the sole and absolute discretion to determine
whether the event or circumstances giving rise to a "cause" termination are
cured by the Employee. In addition to the above, the Employee may terminate this
Agreement and the Employee's employment hereunder upon at least thirty (30) days
prior written notice to the Employer. In the event of such notice, the Employer
may, at its option, advance the date of the Employee's termination to a date
earlier than that specified by the Employee if the Employer determines that such
is consistent with its business and transition needs. If the Employer elects to
advance the date of the Employee's termination, the Employee will be paid his
full salary as if he worked for thirty (30) days after providing notice of
termination, and the parties agree that under these circumstances, the Employee
shall not receive any separation payment as described in Section 7.C. In
addition to the above, the parties agree that the Employer's modification or
elimination of the Employee's title or duties as acting Chief Financial Officer
and Treasurer of Brightpoint, Inc. shall not constitute a termination of this
Agreement, nor shall such events give rise to any rights for Employee including,
but not limited to, any separation payment.
VI. Notice and Date of Termination. Any termination of the
Employee's employment by the Company 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. 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 pursuant to any other reason set forth
in Section 5, the date on which the Notice of Termination is given or such other
date specified in the Notice by the Company; and (c) if this Agreement is
terminated by the Employee, the date specified by him in the Notice.
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VII. Compensation Upon Termination.
A. If the Employee's employment shall be terminated
by reason of his death or disability, 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 duly-qualified estate (and as otherwise provided by
law) as a lump sum benefit, his full Salary to the date of his death and such
payment shall fully discharge the Employer's obligations to Employee and his
estate with respect to this Agreement.
B. If the Employee's employment shall be terminated
for Cause, or if the Agreement is terminated by the Employee, or if the
Employee's employment and this Agreement terminate due to the expiration or
nonrenewal of this Agreement (pursuant to Section I), 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 have no
further obligations to him with respect to this Agreement.
C. If the Employer terminates the Employee's
employment and this Agreement, other than for Cause (as defined in Section 5),
death or disability, or other than as a result of the Employee's termination of
this Agreement or his resignation, then the Employer shall pay the Employee his
full Salary through the Date of Termination at the rate in effect at the time
the Notice of Termination is given to him. In addition, in the event of said
termination, the Employer shall provide the Employee an opportunity to execute a
Separation Agreement and Release of Claims ("Separation Agreement"), to be
prepared by the Employer, and which agreement shall include a provision for a
separation payment to the Employee. Said separation payment shall be an amount
equivalent to the base Salary paid to the Employee during his employment (up to
a maximum amount equivalent to twelve (12) times the Employee's monthly base
salary on the Date of Termination). This separation payment shall be in lieu of
any further obligations to the Employee, including, but not limited to, any
arising under this Agreement.
D. Notwithstanding the above or any other provision
in this Agreement, the Employer's obligations to the Employee pursuant to
Section 9 of this Agreement shall survive any termination of this Agreement by
either the Employee or the Employer, with or without cause.
VIII. 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 that he has responsibility for tax and treasury which involve
highly confidential matters. As a result of his employment, the Employee will be
in possession of sensitive and highly confidential information relating to the
business practices of the Company, both in the United States and abroad. 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 8.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 five (5) years after the termination of
employment, directly or indirectly, use, communicate, disclose or disseminate to
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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 or disclosing 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 one (1) year following
such employment, directly or indirectly, within any county (or adjacent county)
in any State within the United States or within any country outside of 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, whether such activities are carried
on within the United States and/or outside of the United States.
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 business activities
including, without limitation, the solicitation of any 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
Sections 8.B and 8.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, or at such other time as directed by the Company, 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
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(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 (2) 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.
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 8; (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. Furthermore, the parties
agree that the period during which the Employee's activities are restricted, as
set forth under this Section 8, shall be extended by any period during which
Employee is in breach of this Agreement.
I. The parties hereto hereby acknowledge that, in
addition to any other remedies the Company may have under Section 8.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 8, 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 8.H and 8.I shall be independent of the other, and shall be severally
enforceable, and all of such rights and
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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 8 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. In addition, if any provision contained
in this Section 8 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 Section 8 shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought (the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company).
IX. Indemnification. The Company 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 (other than any action, suit or proceeding
involving alleged misconduct or malfeasance by him); or (b) any claim asserted
or threatened against him, in either case by reason of or relating to him 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 (other than any action, suit or proceeding involving alleged misconduct or
malfeasance by him). 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
Company. The foregoing indemnification obligation is independent of any similar
obligation provided in the Company'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. Moreover, as stated in Section 7, the Employer's
obligations to the Employee pursuant to Section 9 of this Agreement shall
survive any termination of this Agreement by either the Employee or the
Employer, with or without cause.
X. 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.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
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To the Employee:
Xxxxxxx X. Xxxx
At the home address he provides to the Company
With, in either case, a copy in the same manner to:
Ice Xxxxxx
Xxx Xxxxxxxx Xxxxxx, Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
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, including, but
not limited to, the Employment Agreement entered into between the Employee and
Brightpoint North America L.P., which agreement was effective on January 1, 2001
(and which agreement the parties executed on June 11, 2001). The parties agree
that this Agreement 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. Warranties. Employee hereby warrants and
represents as follows: (a) that the execution of this Agreement and the
discharge of his obligations hereunder will not breach or conflict with any
other contract, agreement, or understanding between Employee and any other party
or parties; and (b) that the 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.
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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.
H. Survival of Provisions. Notwithstanding any other
provision of this Agreement, the parties' respective rights and obligations
under Sections 8 and 9 shall survive any termination or expiration of this
Agreement or the termination of the Employee's employment for any reason
whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
BRIGHTPOINT, INC.,
An Indiana Corporation
By: /s/ Xxxxxx X. Xxxxxx
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Printed: Xxxxxx X. Xxxxxx
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Title:
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/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
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