EXHIBIT 10.23
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT"), effective as of
August 5, 2004 (the "EFFECTIVE DATE"), by and between BRIGHTSTAR CORP., a
Delaware corporation having its principal offices at 0000 X.X. 00xx Xxxxxx,
Xxxxx, Xxxxxxx 00000 (the "COMPANY"), and XXXXX XXXXXXXX (the "EXECUTIVE").
WHEREAS, the Executive is currently employed by the Company in the
capacities of Vice President, Chief Financial Officer and Secretary of the
Company;
WHEREAS, the Company desires to continue to employ and retain the
Executive for the Employment Term (as defined in Section 1 hereof) in such
capacities in order to advance the business and interests of the Company on the
terms set forth herein;
WHEREAS, the Executive desires to continue to provide his services to
the Company in such capacities, on and subject to the terms set forth herein;
and
WHEREAS, the Company desires to provide the Executive with certain
non-qualified options to acquire shares of capital stock in the Company in order
that the Executive may have the opportunity to participate in the growth and
performance of the Company, subject to the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. EMPLOYMENT AND TERM. Subject to the terms set forth herein, the
Company hereby employs the Executive as Vice President, its Chief Financial
Officer and Secretary for and during the Employment Term and the Executive
hereby accepts such employment. The term of the Executive's employment shall
commence on the Effective Date and shall continue until the second (2nd)
anniversary of the Effective Date unless earlier terminated as herein provided
(the "INITIAL TERM"), and thereafter shall be renewed for successive additional
terms of one (1) year (each, a "RENEWAL TERM" and, together with the Initial
Term, the "EMPLOYMENT TERM"), unless either party provides the other with
written notice, as provided for herein, at least ninety (90) days prior to the
date the Employment Term would otherwise expire, of such party's intention not
to so renew such term.
2. DUTIES OF EXECUTIVE. (a) The Executive shall, during the Employment
Term, perform the executive and administrative duties, functions and privileges
consistent with and incumbent upon the position of Chief Financial Officer and
such other duties as reasonably determined by the Chief Executive Officer and
the Board of Directors of the Company (the "BOARD OF DIRECTORS") from time to
time. The Executive shall report directly to the Chief Executive Officer of the
Company and to the Board of Directors and, if so elected, the Executive shall
serve as a member of the Board of Directors without additional compensation. The
Executive agrees to serve the Company faithfully, conscientiously and to the
best of his ability and to devote substantially all of his business time,
attention and skills to the business and affairs of the Company (and, if
requested by the Chief Executive Officer and/or the Board of Directors, any
subsidiary and/or affiliate of the Company) so as to promote the profit, benefit
and
advantage of the Company and, if applicable, any subsidiaries and/or affiliates
of the Company. The Executive agrees to accept the compensation to be paid to
him under this Agreement as full and complete compensation for the services
required to be performed by, and the covenants of, the Executive under this
Agreement.
(b) Whenever the Chief Executive Officer and/or Chief
Financial Officer of the Company are required by law, rule or regulation or
requested by any governmental authority or by the Company's auditors to provide
certifications with respect to the Company's financial statements or filings
with the Securities and Exchange Commission or any other governmental authority,
the Executive shall sign such certifications as may be reasonably requested by
the Company, with such exceptions as the Executive deems necessary to make such
certifications accurate and not misleading.
3. LOCATION AND TRAVEL. The Executive shall not be required to relocate
outside the greater Miami-Fort Lauderdale metropolitan area without his prior
written consent; PROVIDED, HOWEVER, that the Executive acknowledges that
significant domestic and international travel may be required as part of his
duties hereunder and agrees to undertake such travel as may be reasonably
required by the business of the Company from time to time.
4. COMPENSATION.
4.1. BASE SALARY. The Executive shall be paid at the annual
rate of One Hundred Eighty Thousand Dollars ($180,000) per year ("BASE SALARY").
All compensation shall be made in accordance with the standard payroll practices
of the Company.
4.2. BONUS. The Executive shall be eligible to receive an
annual bonus during the Employment Term in an amount up to twenty-five percent
(25%) of the Base Salary with fifty percent (50%) of the bonus to be determined
based on achievement of Company objectives and fifty percent (50%) of the bonus
based on achievement of personal objectives of the Executive both as determined
by the Board of Directors or a committee thereof. The objectives for each fiscal
year shall be determined and provided to the Executive in writing no later than
January 31st of each fiscal year.
4.3. REGULAR BENEFITS. The Executive shall be entitled to
participate in any health insurance, accident insurance, hospitalization
insurance, life insurance, pension or any other similar plan or benefit provided
by the Company to its executives or employees generally, including any stock
option plan, if and to the extent the Executive is eligible to participate in
accordance with the provisions of any such insurance, plan or benefit generally
(collectively, the "REGULAR BENEFITS").
4.4. VACATION. The Executive shall be entitled to vacation as
provided in the Company's policies, such vacation to be taken at times mutually
agreeable to the Executive and the Company. The Executive shall further be
entitled to the number of paid holidays, and leaves for illness or temporary
disability in accordance with the policies of the Company for its senior
executives.
4.5. TERM LIFE INSURANCE. The Company shall have the right
from time to time to purchase, modify or terminate insurance policies on the
life of the Executive for the benefit of
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the Company in such amount as the Company shall determine in its sole
discretion. In connection therewith, the Executive shall, at such time or times
and at such place or places as the Company may reasonably direct, submit himself
to such physical examinations and execute and deliver such documents as the
Company may deem necessary or desirable; PROVIDED, HOWEVER, that the eligibility
of the Executive for, or the availability of, such insurance shall not be deemed
to be a condition of continued employment hereunder. The Executive makes no
representation to the Company as to his current or future eligibility for
insurance.
4.6. EXPENSE REIMBURSEMENT. The Company shall reimburse the
Executive for all expenses reasonably incurred by him in connection with the
performance of his duties hereunder and the business of the Company, upon the
submission to the Company of appropriate receipts therefor, in accordance with
the expense reimbursement policy of the Company.
5. TERMINATION AND SEVERANCE ARRANGEMENTS.
5.1. TERMINATION BY THE COMPANY. The Company may terminate
this Agreement at any time by providing at least thirty- (30) days' advance
written notice to the Executive. In the event that the Company terminates this
Agreement other than (a) in connection with a Change of Control (as defined in
Section 6.1 hereof), in which event Section 6 shall apply, or (b) for Cause (as
defined in Section 5.3 hereof), in which event Section 5.3 shall apply, the
Company shall, notwithstanding such termination, in consideration for all of the
undertakings and covenants of the Executive contained herein, continue to pay to
the Executive the Base Salary and afford the Regular Benefits for a period of
twelve (12) months from the date of such termination. In addition, in the event
that the Company terminates this Agreement as described in the immediately
preceding sentence (excluding as set forth in clauses (a) and (b) in this
Section 5.1), any and all options granted to the Executive by the Company shall
become automatically and immediately vested and exercisable for the period of
twenty four (24) months following the date of termination. In no event, however,
shall the continuation of the Base Salary or the Regular Benefits during such
post-termination period be deemed to be employment hereunder for purposes of
calculating any bonus due to the Executive or for purposes of determining the
vesting or exercise period of any stock options granted hereunder, or otherwise.
5.2. TERMINATION BY EXECUTIVE. The Executive may terminate his
employment for Good Reason (as defined below) and receive the payments and
benefits specified in Section 5.1. For purposes of this Agreement, "GOOD REASON"
will exist if the Company fails to honor, after a reasonable time to cure, any
of its material obligations under this Agreement, including its obligations
under Section 4 (COMPENSATION), Section 11 (INDEMNIFICATION) and/or Section 13.4
(SUCCESSOR OBLIGATIONS).
5.3. TERMINATION FOR CAUSE. Notwithstanding the Employment
Term, the Company may terminate the Executive for Cause upon a resolution duly
adopted by the affirmative vote of not less than a majority of the entire
membership of the Board of Directors (excluding the Executive, if a director).
In the event that the employment of the Executive is terminated by the Company
for Cause, no severance or other post-termination payment shall be due or
payable by the Company to the Executive (except solely such Base Salary or other
payments as may have been accrued but not yet paid prior to such termination).
For purposes
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hereof, "CAUSE" shall mean: (a) the conviction of, or the guilty or no contest
plea or confession of guilt with respect to, any felony or misdemeanor involving
theft, fraud, dishonesty or misrepresentation; (b) any material
misappropriation, embezzlement or conversion of the Company's or any of its
subsidiary's or affiliate's property by the Executive; (c) willful misconduct by
the Executive in respect of the material duties or obligations of the Executive
under this Agreement; or (d) a material breach by the Executive of any of his
material obligations hereunder, after written notice thereof and thirty (30)
days to cure the same; PROVIDED that such material breach is not caused by the
Disability, of the Executive, in which event Section 5.4 shall apply.
5.4. DEATH OR DISABILITY. In the event that the employment of
the Executive by the Company is terminated by reason of the death of the
Executive or by reason of medical or psychiatric disability that prevents the
Executive from satisfactorily performing a material portion of his duties for
ninety (90) consecutive calendar days (a "DISABILITY"), the Company shall,
promptly upon such termination, pay the Executive an amount equal to three (3)
months of Base Salary, in a single lump sum.
6. PARACHUTE PROVISIONS.
6.1. CHANGE OF CONTROL. For purposes of this Agreement, a
"CHANGE OF CONTROL" shall be deemed to have occurred upon the occurrence of any
one or more of the following events:
6.1.1. Any "person" or "group" (as such terms are
used in connection with Section 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT")), excluding the Executive or any
employee benefit plan of the Company, (a) becomes, after the Effective Date, the
"beneficial owner" (as defined in Rule l3d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's outstanding securities then
entitled to vote for the election of directors or (b) acquires, after the
Effective Date, by proxy or otherwise, fifty percent (50%) or more of the
combined voting securities of the Company having the right to vote for the
election of directors of the Company, for any merger or consolidation of the
Company or for any other matter; or
6.1.2. There shall be consummated without the written
consent of the Executive (a) any consolidation, merger or recapitalization of
the Company or any similar transaction involving the Company, whether or not the
Company is the continuing or surviving corporation, (b) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company or (c)
the adoption of a plan of complete liquidation of the Company (whether or not in
connection with the sale of all or substantially all, of the Company's assets)
or a series of partial liquidations of the Company that is DE JURE or DE FACTO
part of a plan of complete liquidation of the Company; PROVIDED, HOWEVER, that
the divestiture of less than substantially all of the assets of the Company in
one transaction or a series of related transactions (whether effected by sale,
lease, exchange, spin-off, sale of the stock or merger of a Subsidiary or
otherwise, or a transaction solely for the purpose of reincorporating the
Company in another jurisdiction) shall not constitute a Change in Control.
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6.2. RIGHTS ON CHANGE IN CONTROL. If, within one year after,
or ninety (90) days prior to, a Change in Control of the Company, the Company
shall terminate the Executive's employment other than by reason of the
Executive's death or Disability or for Cause, the Company shall pay to the
Executive as compensation for services rendered, not later than the fifth (5th)
business day after the date of such termination:
6.2.1. The Executive's Base Salary through the date
of such termination, any Regular Benefits and incentive compensation for the
fiscal year in which the termination occurs in accordance with any arrangements
then existing with the Executive and proportionate to the period of the fiscal
year that has expired prior to the termination; and
6.2.2. A lump-sum severance payment equal to the Base
Salary for one year.
In addition, any and all options granted to the Executive shall become
automatically and immediately vested and exercisable in accordance with the
Plan.
7. PROPRIETARY RIGHTS.
7.1. NON-COMPETITION. The Executive covenants and agrees that
for so long as he shall be employed by the Company and until two (2) years from
the date of the termination of such employment for any reason (such period of
time the "RESTRICTED PERIOD"), the Executive shall not, directly or indirectly,
own, manage, control, operate invest in or become principal of employee of,
director of, or consultant to, any business, entity or venture that is
competitive with the business of the Company as conducted at such time;
PROVIDED, HOWEVER, that it shall not be a breach of this Section 7.1 for the
Executive to have beneficial ownership of less than five percent (5%) of the
outstanding amount of any class of securities of any enterprise (but without
otherwise participating in the activities of such enterprise) if such securities
are listed on a national securities exchange or quoted on an inter-dealer
quotation system.
7.2. CONFIDENTIALITY. The Executive recognizes and
acknowledges that certain confidential business and technical information used
by the Executive in connection with his duties hereunder includes certain
confidential and proprietary information relating to the designing, development,
construction and marketing of computer hardware and is a valuable and unique
asset of the Company. The Executive agrees that he shall at all times maintain
the confidentiality of the proprietary information and trade secrets of the
Company, and that he shall during the Restricted Period refrain from disclosing
any such information to his advantage and/or to the disadvantage of the Company.
7.2.1. During the Restricted Period, the Executive
shall not, directly or indirectly, (a) solicit, in competition with the Company,
any person or entity who or that is a customer of any business conducted by the
Company or (b) in any manner whatsoever induce, or assist others to induce, any
supplier of the Company to terminate its association with the Company or do
anything, directly or indirectly, to interfere with the business relationship
between the Company and any of their respective current or prospective
suppliers.
7.2.2. During the Restricted Period, the Executive
shall not, directly or indirectly, solicit or induce any employee of the Company
to terminate his or her employment
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for any purpose, including in order to enter into employment with any entity
that competes with any business conducted by the Company
7.3. OWNERSHIP BY COMPANY. The Executive acknowledges and
agrees that any of his work product created, produced or conceived in connection
with his association with the Company shall be deemed work for hire and shall be
deemed owned exclusively by the Company. The Executive shall execute and deliver
all documents required by the Company to document or perfect the Company's
proprietary rights in and to the Executive's work product.
7.4. REMEDIES. It is expressly understood and agreed that the
services to be rendered hereunder by the Executive are special, unique and of
extraordinary character, and in the event of the breach by the Executive of any
of the terms and conditions of this Agreement on his part to be performed
hereunder, or in the event of the breach or threatened breach by the Executive
of the terms and provisions of this Section 7 of this Agreement, the Company
shall be entitled, if it so elects, to institute and prosecute any proceedings
in any court of competent jurisdiction, either in law or equity, for such relief
as it deems appropriate, including, without limiting the generality of the
foregoing, any proceedings, to obtain damages for any breach of this Agreement,
or to enforce the specific performance thereof by the Executive.
8. CONTINUED COOPERATION. The Executive shall, during and after the
conclusion of his employment relationship for any reason, cooperate fully with
the Company with respect to any internal or external agency or legal
investigation, lawsuits, financial reports, or with respect to other matters
within his knowledge, responsibilities or purview. The Company will pay a
reasonable per diem for post-termination services rendered by the Executive in
compliance herewith, based on the Executive's Base Salary (in effect at such
applicable time or prior to such conclusion) and time reasonably expended by
him. The Executive shall execute all lawful documents reasonably necessary for
Employer to secure or maintain the Company's intellectual property and/or other
confidential information.
9. MARKET STANDOFF AGREEMENT. The Executive hereby agrees that if so
requested by the Company or by any representative of any underwriters in
connection with any registration of the offering of any securities of the
Company under the Securities Act of 1933, as amended (the "SECURITIES ACT"), the
Executive shall not sell or otherwise transfer any securities of the Company
during the 180-day period following the effective date of a registration
statement of the Company filed under the Securities Act.
10. DIRECTOR'S AND OFFICER'S LIABILITY INSURANCE. To protect Executive
from any liability, loss, claims, damages, or costs, including legal fees and
costs, prior to any public offering of any securities of the Company, the
Company shall purchase and maintain director's and officer's liability insurance
in an amount not less than Two Million Dollars ($2,000,000), or in such amount
as is reasonably agreed upon by Executive and the Company.
11. INDEMNIFICATION. As an officer and/or director of the Company, the
Executive shall be indemnified against all liabilities, damages, fines, costs
and expenses by the Company in accordance with the indemnification provisions of
the Company's Certificate of Incorporation as in effect on the date hereof, and
otherwise to the fullest extent to which employees, officers and directors of a
corporation organized under the laws of the State of Delaware may be indemnified
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pursuant to the laws of such State, as the same may be amended from time to time
(or any subsequent statute of similar tenor and effect), subject to the terms
and conditions of such statute.
12. INDEPENDENT REPRESENTATION. The Executive acknowledges that he has
had the opportunity to seek independent counsel and tax advice in connection
with the execution of this Agreement, and the Executive represents and warrants
to the Company (a) that he has sought such independent counsel and advice as he
has deemed appropriate in connection with the execution hereof and the
transactions contemplated hereby and (b) that he has not relied on any
representation of the Company as to tax matters, or as to the consequences of
the execution hereof.
12.1. NEUTRAL CONSTRUCTION. No party may rely on any drafts of
this Agreement in any interpretation of the Agreement. Each party to this
Agreement has reviewed this Agreement and has participated in its drafting and,
accordingly, no party shall attempt to invoke the normal rule of construction to
the effect that ambiguities are to be resolved against the drafting party in any
interpretation of this Agreement.
12.2. ATTORNEY'S FEES. In the event that either party hereto
commences litigation against the other to enforce such party's rights hereunder,
the prevailing party shall be entitled to recover all costs, expenses and fees,
including reasonable attorneys' fees (including in-house counsel), paralegals,
fees, and legal assistants' fees through all appeals.
13. GENERAL.
13.1. APPLICABLE LAW. This document shall in all respects be
governed by the laws of the State of Florida. The parties acknowledge that
substantially all of the negotiations relating to this Agreement were conducted
in the State of Florida, and that this Agreement has been executed by both
parties in the State of Florida. Any legal suit, action or proceeding against
any party hereto arising out of or relating to this Agreement shall be
instituted in a federal or state court in Miami-Dade County, Florida, and each
party hereto waives any objection that it may now or hereafter have to the
laying of venue or forum of any such suit, action or proceeding and each party
hereto irrevocably submits to the jurisdiction of any such court in any suit,
action or proceeding.
13.2. RIGHTS ABSOLUTE. The Company's obligation to pay the
Executive the compensation specified herein shall be absolute and unconditional
and shall not be affected by any circumstance, including any setoff,
counterclaim, defense or other right which the Company may have against the
Executive or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand.
13.3. NO OFFSET. Except as expressly provided herein, the
Company waives all rights it my now have or may hereafter have conferred upon
it, by statute or otherwise, to terminate, cancel or rescind this Agreement in
whole or in part. The Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment, and if
Executive obtains such other employment, any compensation earned by Executive
pursuant thereto shall not be applied to mitigate any payment made to Executive
pursuant to this Agreement.
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13.4. SUCCESSOR OBLIGATIONS. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume by written agreement and to agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
13.5. SURVIVAL. The parties hereto agree that the covenants
contained in Section 7 hereof shall survive any termination of employment by the
Executive or the Company and any termination of this Agreement. In addition, the
parties hereto agree that any compensation or right that shall have accrued to
the Executive as of the date of any termination of employment or termination
hereof shall survive any such termination and shall be paid when due to the
extent accrued on the date of such termination.
13.6. ASSIGNABILITY. All of the terms and provisions contained
herein shall inure to the benefit of and shall be binding upon the parties
hereto and their respective heirs, personal representatives, successors and
permitted assigns. The obligations of the Executive, however, may not be
assigned, and the Executive may not, without the Company's written consent,
assign, transfer, convey, pledge, encumber, hypothecate or otherwise dispose of
this Agreement or any interest therein. Any such attempted assignment or
disposition shall be null and void and without effect. The Company and the
Executive agree that this Agreement and all of the Company's rights and
obligations hereunder may be assigned or transferred by the Company to, and may
be assumed by and become binding upon and may inure to the benefit of, any
affiliate of, or successor to, the Company. The term "successor" shall mean,
with respect to the Company or any of its subsidiaries, and any other
corporation or other business entity that, by merger, consolidation, purchase of
the assets or otherwise, acquires all or a material part of the assets of the
Company. Any assignment by the Company of its rights and obligations hereunder
to any affiliate of or successor shall not be considered a termination of
employment for purposes of this Agreement.
13.7. NOTICES. Any and all notices required or desired to be
given hereunder by any party shall be in writing and shall be validly given or
made to another party if delivered either personally, by telex, facsimile
transmission, same-day delivery service, overnight expedited delivery service,
or if deposited in the United States Mail, certified or registered, postage
prepaid, return receipt requested. If notice is served personally, notice shall
be deemed effective upon receipt. If notice is served by telex or by facsimile
transmission, notice shall be deemed effective upon transmission, provided that
such notice is confirmed in writing by the sender within one (1) day after
transmission. If notice is served by same-day delivery service or overnight
expedited delivery service, notice shall be deemed effective the day after it is
sent, and if notice is given by United States mail, notice shall be deemed
effective five (5) days after it is sent. In all instances, notice shall be sent
to the parties at the following addresses:
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If to the Company: Brightstar Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: R. Xxxxxxx Xxxxxx, President
If to the Executive: Xxxxx Xxxxxxxx
000 X.X. 00xx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Any party may change its address for the purpose of receiving notices by a
written notice given to the other party in accordance with this Section 13.7.
13.8. MODIFICATIONS OR AMENDMENTS. No amendment, change or
modification of this document shall be valid unless in writing and signed by the
Executive and the Company.
13.9. WAIVER. No reliance upon or waiver of one or more
provisions of this Agreement shall constitute a waiver of any other provisions
hereof.
13.10. SEVERABILITY. If any provision of this Agreement as
applied to either party or to any circumstances shall be adjudged by a court of
competent jurisdiction to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement or the validity or enforceability
of this Agreement. If any court construes any of the provisions to be
unreasonable because of the duration of such provision or the geographic or
other scope thereof, such court may reduce the duration or restrict the
geographic or other scope of such provision and enforce such provision as so
reduced or restricted.
13.11. SEPARATE COUNTERPARTS. This document may be executed in
two separate counterparts, each of which, when so executed, shall be deemed to
be an original. Such counterparts shall, together, constitute and shall be one
and the same instrument.
13.12. HEADINGS. The captions appearing at the commencement of
the sections hereof are descriptive only and are for convenience of reference.
Should there be any conflict between any such caption and the section at the
head of which it appears, the substantive provisions of such section and not
such caption shall control and govern in the construction of this document.
13.13. FURTHER ASSURANCES. Each of the parties hereto shall
execute and deliver any and all additional papers, documents and other
assurances, and shall do any and all acts and things reasonably necessary in
connection with the performance of their obligations hereunder and to carry out
the intent of the parties hereto.
13.14. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter of
this Agreement, and any and all prior agreements or representations are hereby
terminated and canceled in their entirety.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed this 5th day of August, 2004, effective as of the date first
above written.
BRIGHTSTAR CORP., a Delaware corporation
By: /s/ R. Xxxxxxx Xxxxxx
-------------------------------------
Name:
Title: President
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
XXXXX XXXXXXXX
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