EXHIBIT 10.22
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and
entered into on August __, 2004 (the "EMPLOYMENT COMMENCEMENT DATE") by and
between BRIGHTSTAR CORP., a Delaware corporation (the "COMPANY"), and XXXX
XXXXXXX XXXXXX (the "Executive").
WHEREAS, the Executive is currently employed by the Company in the
capacities of President and Chief Executive Officer of the Company;
WHEREAS, the Company desires to continue to employ and retain the
Executive for the Employment Period (as defined below) in such capacities in
order to advance the business and interests of the Company on the terms set
forth herein; and
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.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
Section 1. DEFINITIONS. As used herein, the following terms shall have
the meanings set forth below.
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"BASE COMPENSATION" shall have the meaning set forth in Section 5(a).
"BOARD OF DIRECTORS" means the sitting directors of the Company as of
the point in time reference thereto is made in this Agreement.
"CAUSE" shall have the meaning set forth in Section 9(b)(1).
"CHANGE IN CONTROL" shall have the meaning set forth in Section
9(e)(2).
"COLA ADJUSTMENT" means the cost of living adjustment, which shall be
equal to (i) two percent (2%) plus (ii) the percent rise in prices for the
preceding year as measured by the Index. The COLA Adjustment shall be determined
by multiplying the amount or figure to be adjusted by the sum of (i) two percent
(2%) plus (ii) a fraction, the numerator of which is the Index published for the
month in which the adjustment occurs and the denominator of which is the Index
published for the same month of the preceding year.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock, par value $0.0001 per share, of
the Company.
"COMPANY" shall have the meaning set forth in the introductory
paragraph of this Agreement, and shall include the Subsidiaries, if appropriate,
and any successor to its business
and/or assets as aforesaid that executes and delivers the agreement provided for
in the first paragraph of Section 14 or that otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
"COMPETITIVE BUSINESS" means any other corporation, partnership,
limited liability company, proprietorship, firm, association or other business
entity that owns, manages, operates, controls or participates in a business that
directly competes with the principal business of the Company in the geographic
areas in which it then operates.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Section
8(c).
"DISABILITY" of the Executive means that, as a result of the
Executive's incapacity due to physical or mental illness, (i) the Executive
shall have been absent from his duties on a full-time basis for six (6)
consecutive months, or for an aggregate of nine (9) months in any consecutive
twelve (12)-month period, (ii) a physician selected by the Executive is of the
opinion that (a) he is suffering from "total disability" as defined in the
Company's disability insurance program or policy and (b) he will qualify for
social security disability payments or (iii) within thirty (30) days after
written notice thereof is given by the Company to the Executive (which notice
may be given at any time after the end of such six (6) or twelve (12) month
periods), the Executive shall not have returned to the performance of his duties
on a full-time basis. (If the Executive is prevented from performing his duties
because of a Disability, upon request by the Company, the Executive shall submit
to an examination by a physician selected by the Company, at the Company's
expense, and the Executive shall also authorize his personal physician to
disclose to the selected physician all of the Executive's medical records).
"EMPLOYMENT COMMENCEMENT DATE" means the date set forth in the
introductory paragraph of this Agreement.
"EMPLOYMENT PERIOD" means that period commencing on the Employment
Commencement Date and ending on the third (3rd) anniversary of the Employment
Commencement Date; PROVIDED, HOWEVER, that the Employment Period will be renewed
for additional successive terms of one (1) year unless either party provides the
other with written notice, at least ninety (90) days prior to the date that the
Employment Period would otherwise expire, of such party's intention not to so
renew such Period.
"EMPLOYMENT TERMINATION DATE" shall have the meaning set forth in
Section 9(a)(2).
"FISCAL YEAR" means the fiscal year of the Company ending December 31
or such fiscal year as may be amended by the Board of Directors.
"GOOD REASON" shall have the meaning set forth in Section 9(e).
"INCENTIVE BONUS COMPENSATION" shall have the meaning set forth in
Section 5(b).
"INDEX" means the Consumer Price Index for all Urban Consumers
(CPI-UC), All City Average, all Items (base year 1982-1984 = 100) published by
the United States Department of Labor, Bureau of Labor Statistics.
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"IPO" means the Company's initial public offering ("IPO") of securities
pursuant to a registration statement declared effective by the Commission.
"NASD" means National Association of Securities Dealers, Inc.
"NOTICE OF TERMINATION" shall mean a written notice that indicates the
specific termination provision in this Agreement relied upon and sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination under such provision.
"REGISTRABLE SECURITIES" means any shares of Common Stock now or
hereafter held by the Executive other than Unrestricted Securities.
"REGISTRATION," "REGISTER" and like words mean compliance with all of
the laws, rules and regulations (federal, state and local), and provisions of
agreements and corporate documents pertaining to the public offering of
securities, including registration of any public offering of securities on any
form under the Act.
"REGISTRATION EXPENSES" shall mean all expenses incident to the
Company's performance of, or compliance with, Section 11, including (i) all
registration, filing and NASD fees, (ii) all fees and expenses of complying with
securities or blue sky laws, (iii) all printing expenses, (iv) the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, (v) the fees
and disbursements of any one counsel and any one (1) accountant retained by the
Executive, (vi) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Executive's Common Stock
being registered if the Company desires such insurance and (vii) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding underwriting discounts and commissions and transfer
taxes, if any.
"RESTRICTED PERIOD" means the period from and during the Employment
Period and until the later of (i) the second (2nd) anniversary of the date of
termination of this Agreement and (ii) if, however, the Executive terminates
this Agreement other than for Good Reason or a Disability, a period of one (1)
year from the end of the Employment Period; PROVIDED, HOWEVER, that the
Restricted Period means the Employment Period if the Company terminates the
Executive's employment without Cause or the Executive terminates his employment
for Good Reason.
"SUBSIDIARIES" means any majority owned subsidiaries of the Company.
"UNRESTRICTED SECURITIES" means the shares of Common Stock beneficially
owned by the Executive, if any, that can be transferred by the Executive without
registration under the Act.
Section 2. EMPLOYMENT AND TERM. The Company hereby employs the
Executive, and the Executive hereby accepts such employment by the Company, for
the purposes and upon the terms contained in this Agreement. The term of such
employment shall be for the Employment Period.
Section 3. EMPLOYMENT CAPACITY AND DUTIES. (a) The Executive shall be
employed throughout the Employment Period as the President and Chief Executive
Officer of the Company. The Executive shall have the duties and responsibilities
consistent with and
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incumbent upon this position, but at all times shall act in accordance with the
directions given by the Board of Directors. Accordingly, and not by way of
limitation, as President and Chief Executive Officer, the Executive shall be
responsible for the active day-to-day management of the Company. The Company
agrees that it will not, without the Executive's written consent, require the
Executive to be based anywhere other than the greater Miami, Florida
metropolitan area, except for required travel on the Company's business.
(b) Whenever the Chief Executive Officer of the Company is
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 the financial statements or filings with the 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.
Section 4. EXECUTIVE PERFORMANCE COVENANTS. The Executive accepts the
employment described in Section 3 and agrees to devote substantially all of his
business time, attention and skills (except for absences due to illness and
appropriate vacations) to the business and affairs of the Company and the
performance of the aforesaid duties and responsibilities. However, nothing in
this Agreement shall preclude the Executive from devoting a reasonable amount of
his time and efforts to civic, community, charitable, professional and trade
association affairs and matters and such other activities as may be disclosed in
writing from time to time to the Board of Directors.
Section 5. COMPENSATION. The Company shall pay to the Executive for his
services hereunder the compensation hereinafter provided in this Section 5. Such
compensation shall be paid to the Executive at the time and in the manner as
provided below.
(a) BASE COMPENSATION. The Executive shall be paid for each
Fiscal Year at an annual rate of Five Hundred Thousand Dollars ($500,000) ("BASE
COMPENSATION") payable in accordance with the Company's customary payroll
periods or such other basis as may be determined by the Board of Directors. The
Base Compensation (i) may be increased (but may not be decreased) at any time or
from time to time by action of the Board of Directors or the Compensation
Committee thereof and (ii) shall be increased by the COLA Adjustment on each
anniversary of the Employment Commencement Date. The Base Compensation shall be
pro-rated for any Fiscal Year hereunder that is less than a full Fiscal Year.
(b) INCENTIVE BONUS COMPENSATION. The Executive shall be
eligible for incentive bonus compensation for each Fiscal Year in an amount up
to one hundred percent (100%) of the Base Compensation for such Fiscal Year,
based fifty percent (50%) on the Company's performance and fifty percent (50%)
on the Executive's personal contribution to the Company, each as determined by
the Board of Directors or the Compensation Committee thereof in its sole
discretion ("INCENTIVE BONUS COMPENSATION").
Section 6. PAYMENT OF EXPENSES. The Company shall pay the Executive's
reasonable expenses incurred in providing services to the Company, including
expenses for travel, entertainment and similar items, in accordance with the
Company's expense policies as determined from time to time by the Board of
Directors. The Executive shall provide all documentation in connection with such
expenses as the Board of Directors shall request. If there
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is a dispute as to the eligibility of an expense for payment in accordance with
the Company's expense policies, then such expense shall be determined to be
payable by the Company if approved by the Board of Directors.
Section 7. EMPLOYEE BENEFITS, VACATIONS. During the Employment Period,
the Executive shall receive the benefits and enjoy the perquisites described
below:
(a) BENEFIT PLANS. The Executive shall be entitled to
participate in any perquisite, benefit or compensation plan (in addition to the
compensation provided for in Section 5), including any stock option plan, profit
sharing plan and 401(k) plan, medical insurance plan (which medical insurance
shall be provided for all of the Executive's dependents, at the Company's
expense), life insurance plan, health and accident plan and disability plan that
are generally applicable to all senior executives of the Company (collectively
referred to as the "BENEFIT PLANS"). All such Benefit Plans shall be maintained
by the Company, or the Company shall maintain plans providing substantially
similar benefits; PROVIDED, HOWEVER, that the Company may make modifications in
the Benefit Plans so long as such modifications (i) are generally applicable to
all salaried employees of the Company and (ii) do not discriminate against the
Executive or other highly-compensated employees of the Company. The Company does
not guarantee, represent or warrant that any Benefit Plan will be available or
will continue to be available hereunder during the Employment Period. In
addition to, and without limiting the foregoing, the Company shall purchase and
maintain during the Employment Period, a term life insurance policy having a
death benefit in the amount of Five Million Dollars ($5,000,000) covering the
life of the Executive and naming the Executive's children as the sole
beneficiaries thereof.
(b) DIRECTOR'S AND OFFICER'S LIABILITY INSURANCE. To protect
the Executive from any liability, loss, claims, damages or costs, including
legal fees and costs, the Company shall, prior to any public offering of any
securities of the Company, 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 the Executive and the Company.
(c) VACATIONS. The Executive shall be entitled in each Fiscal
Year to a vacation of four (4) weeks, during which time his compensation shall
be paid in full, and such holidays and other non-working days as are consistent
with the policies of the Company for executives generally. The number of
vacation days available hereunder shall be pro rated for any Fiscal Year that is
less than a full Fiscal Year.
(d) AUTOMOBILE ALLOWANCE. The Executive shall be entitled to a
monthly automobile allowance of Two Thousand Dollars ($2,000) (gross) per month,
which shall be paid to the Executive, in advance, on the first day of each month
during the Employment Period, commencing on the first day of the first month
after the Employment Commencement Date. In addition, the Company shall further
reimburse the Executive for all automobile related maintenance, repairs, gas and
insurance expenses in accordance with the terms of Section 6.
(e) CELLULAR PHONE. The Executive shall be entitled to the use
of a cellular telephone provided by the Company, at the Company's expense. All
costs incurred for the use of such cellular telephone shall be paid by the
Company in accordance with the terms of Section 6.
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Section 8. CERTAIN COMPANY PROTECTION PROVISIONS. The following
provisions apply for the protection of the Company:
(a) NONCOMPETITION. During the Restricted Period, the
Executive shall not, directly or indirectly, compete with the Company by owning,
managing, operating, controlling or participating in the ownership, management,
operation or control of, or be employed or engaged (as a consultant or
otherwise) by, or affiliated with or provide material assistance to, any
Competitive Business; PROVIDED, HOWEVER, that ownership of not more than five
percent (5%) of the stock of any publicly traded company shall not be deemed a
violation of this Section 8(a). Cetrocek International and any other company or
business excluded by the Board of Directors shall not be deemed to be a
Competitive Business.
(b) NON-INTERFERENCE; NON-SOLICITATION. During the Restricted
Period, the Executive shall not induce or solicit any employee of the Company or
any person or entity doing business with the Company to terminate his or her
employment or his or its business relationship with the Company or otherwise
interfere with any such relationship.
(c) CONFIDENTIALITY. The Executive agrees and acknowledges
that, by reason of the nature of his duties as an officer and employee of the
Company, he will have access to and become informed of confidential and secret
information (oral or written) that is a competitive asset of the Company
("CONFIDENTIAL INFORMATION"), including any lists of customers or suppliers,
financial statistics, research data or any other statistics and plans contained
in profit plans, capital plans, critical issue plans, strategic plans, marketing
or operational plans, technical data and information, product information or
other information of the Company (whether or not such information qualifies as a
"trade secret" under applicable law) and any of the foregoing that belong to any
third person or company but to which the Executive has had access by reason of
his employment relationship with the Company. The Executive agrees to faithfully
keep in strict confidence, and not, either directly or indirectly, to make
known, divulge, reveal, furnish, make available or use (except for use in the
regular course of his employment duties) any such Confidential Information. The
Executive acknowledges that all manuals, instruction books, price lists,
information and records and other information and aids relating to the Company's
business, and any and all other documents (and all copies thereof) containing
Confidential Information furnished to the Executive by the Company or otherwise
acquired or developed by the Executive, shall at all times be and remain the
property of the Company. Upon termination of the Employment Period, the
Executive shall return to the Company all such property or documents (and all
copies thereof) that are in his possession, custody or control, but his
obligation of confidentiality shall survive such termination of the Employment
Period until and unless any such Confidential Information shall have become,
through no fault of the Executive, generally known to the public. The
obligations of the Executive under this subsection are in addition to, and not
in limitation or preemption of, all other obligations of confidentiality that
the Executive may have to the Company under general legal or equitable
principles or otherwise.
(d) REMEDIES. It is expressly agreed by the Executive and the
Company that these provisions are reasonable for purposes of preserving for the
Company its business, goodwill and proprietary information. It is also agreed
that if any provision is found by a court having jurisdiction to be unreasonable
because of scope, area or time, then that provision shall be amended to
correspond in scope, area and time to that considered reasonable by a court and
as amended shall be enforced and the remaining provisions shall remain
effective. In the event of
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any breach of these provisions by the Executive, the parties recognize and
acknowledge that a remedy at law will be inadequate and the Company may suffer
irreparable injury. The Executive acknowledges that the services to be rendered
by him are of a character giving them peculiar value, the loss of which cannot
be adequately compensated for in damages; accordingly the Executive consents to
injunctive and other appropriate equitable relief (without the posting of a
bond) upon the institution of proceedings therefor by the Company in order to
protect the Company's rights. Such relief shall be in addition to any other
relief to which the Company may be entitled at law or in equity.
(e) CONTINUED COOPERATION. 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) and time reasonably expended by him. The Executive shall
execute all lawful documents reasonably necessary for the Company to secure or
maintain its intellectual property and/or other confidential information.
Section 9. TERMINATION OF EMPLOYMENT.
(a) NOTICE OF TERMINATION; EMPLOYMENT TERMINATION DATE.
(1) Any termination of the Executive's employment by
the Company or the Executive shall be communicated by delivery of a Notice of
Termination to the other party.
(2) "EMPLOYMENT TERMINATION DATE" shall mean the date
of death of the Executive or the date of a Notice of Termination in respect of
any of the following bases for termination of employment, on which date the
Employment Period and the Executive's right and obligation to perform employment
services for the Company shall terminate:
(A) Termination as a result of the Executive's
Disability;
(B) Termination by the Executive for Good
Reason; PROVIDED, HOWEVER, that in the event
of such termination, the date specified on
such Notice shall not be less than thirty
(30) days or more than sixty (60) days after
delivery thereof;
(C) Termination by the Company for Cause;
PROVIDED, HOWEVER, that if, either by mutual
written agreement of the parties, by a
binding and final arbitration award or by a
final judgment, order or decree of a court
of competent jurisdiction (the time for
appeal therefrom having expired and no
appeal having been perfected), such
termination is determined not to have been
for Cause, then the Company shall pay owe
compensation otherwise owed to the Executive
pursuant to Section 5 during the period
after such termination and prior to such
determination; or
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(D) Termination by the Company without Cause.
(b) TERMINATION FOR CAUSE:
(1) The Company may terminate the Executive's
employment and the Employment Period for Cause. For the purposes of this
Agreement, "CAUSE" means the Executive's (A) act or acts of willful misconduct
injurious to the Company, monetarily or otherwise, (B) willful and continued
failure to perform substantially his duties with the Company (other than any
such failure resulting from incapacity due to a Disability) after a demand in
writing for substantial performance is delivered by the Board of Directors,
which demand specifically identifies the manner in which the Board of Directors
believes that the Executive has not substantially performed his duties, (C)
conviction of, or no contest or guilty plea to, a felony crime or (D) repeated
and willful failure to follow the written directives of the Board of Directors
in connection with his employment hereunder. The Executive's employment shall in
no event be considered to have been terminated by the Company for Cause if such
termination took place merely as the result of (i) bad judgment or negligence,
(ii) any act or omission without intent of gaining therefrom directly or
indirectly a profit to which the Executive was not legally entitled, (iii) any
act or omission believed in good faith to have been in or not opposed to the
interest of the Company or (iv) any act or omission in respect of which a
determination is made that the Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or payment of expenses under the
Certificate of Incorporation of the Company or the laws of the State of
Delaware, in each case as in effect at the time of such act or omission. The
Executive shall not be deemed to have been terminated for Cause unless and until
there shall have been delivered to him a copy of a resolution duly adopted by
the Board of Directors that states that the Executive's conduct reflected any of
the criteria set forth above in clauses (A), (B), (C) and/or (D) of this Section
9(b)(1) and specifying the particulars thereof in detail.
(2) If the Executive's employment shall be terminated
for Cause, the Company shall pay the Executive, within ten (10) days of such
termination, (x) his unpaid Base Compensation through the Employment Termination
Date at the rate in effect at the time a Notice of Termination is given, plus
(y) any declared but unpaid Incentive Bonus Compensation, plus (z) any expenses
incurred in accordance with Section 6.
(c) TERMINATION FOR DISABILITY. The Company may terminate the
Executive's employment because of a Disability of the Executive and thereafter
shall pay to the Executive (or his designated representative) (1) his unpaid
Base Compensation through the twelfth (12th) full month following the Employment
Termination Date at his then effective Base Compensation rate, plus (2) any
declared but unpaid Incentive Compensation, plus (3) any expenses incurred in
accordance with Section 6. Thereafter, the Executive's benefits shall be
determined in accordance with the Benefit Plans.
(d) TERMINATION UPON EXECUTIVE'S DEATH. In the event of the
Executive's death, the Company shall pay to the Executive's estate (1) any
unpaid amount of Base Compensation through the date of death at the then
effective Base Compensation rate, plus (2) any declared but unpaid Incentive
Compensation, plus (3) any expenses incurred in accordance with Section 6.
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(e) TERMINATION OF EMPLOYMENT BY THE EXECUTIVE. The Executive
may terminate his employment for Good Reason and receive the payments and
benefits specified in Section 9(f) in the same manner as if the Company had
terminated his employment other than for Cause. For purposes of this Agreement,
"GOOD REASON" will exist if any one or more of the following occur:
(1) Failure by the Company to honor any of its
material obligations under this Agreement, including, without limitation, its
obligations under Section 3 (EMPLOYMENT CAPACITY AND DUTIES), Section 4
(EXECUTIVE PERFORMANCE COVENANTS), Section 5 (COMPENSATION), Section 6 (PAYMENT
OF EXPENSES), Section 7 (EMPLOYEE BENEFITS, VACATIONS) Section 12
(INDEMNIFICATION) and Section 14 (SUCCESSORS AND ASSIGNS); or
(2) If there is a Change in Control of the Company
(as defined below) and the employment of the Executive is concurrently or within
one (1) year thereafter terminated (i) by the Company without Cause or (ii) by
the resignation of the Employee because he has reasonably determined in good
faith that his titles, authorities, responsibilities, salary, bonus
opportunities or benefits have been materially diminished, or that a material
adverse change in his working conditions has occurred or the Company has
breached this Agreement. For the purpose of this Agreement, a "CHANGE IN
CONTROL" of the Company will have occurred when: (x) any person (defined for the
purposes of this Section 10 to mean any person within the meaning of Section
13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")),
other than the Company, or an employee benefit plan established by the Board of
Directors of the Company, acquires after the sale hereof, directly or
indirectly, the beneficial ownership (determined under Rule 13d-3 of the
regulations promulgated by the Securities and Exchange Commission under Section
13(d) of the Exchange Act) of securities issued by the Company having twenty
percent (20%) or more of the voting power of all of the voting securities issued
by the Company in the election of directors at the meeting of the holders of
voting securities to be held for such purpose; or (y) a majority of the
directors elected at any meeting of the holders of voting securities of the
Company are persons who were not nominated for such election by the Board of
Directors of the Company or a duly constituted committee of the Board of
Directors of the Company having authority in such matters; or (z) the Company
merges or consolidates with or transfers substantially all of its assets to
another person and the Company is not the survivor.
(f) COMPENSATION UPON TERMINATION BY THE COMPANY OTHER THAN
FOR CAUSE OR DISABILITY.
(1) If the Company shall terminate the Executive's
employment other than pursuant to Sections 9(b) or 9(c), or if the Executive
shall terminate his employment for Good Reason pursuant to Section 9(e), then
the Company shall pay to the Executive the following amounts:
(A) (x) unpaid Base Compensation through the
Employment Termination Date at his then
effective Base Compensation Rate, plus (y)
any declared but unpaid Incentive Bonus
Compensation, plus (z) any expenses incurred
in accordance with Section 6;
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(B) a single-lump sum cash amount equal to three
(3) times the aggregate total amount that
would have been payable to Executive under
Section 5 for the entire Fiscal Year in
which employment is terminated (and without
deduction or offset for any amounts actually
paid for such Fiscal Year on account of Base
Compensation or Incentive Bonus
Compensation, under Section 5, this Section
9 or otherwise), and assuming for purposes
of calculating (x) the Base Compensation,
one hundred percent (100%) of the amount
thereof at the annual rate payable for such
Fiscal Year pursuant to Section 5(a) and (y)
the Incentive Bonus Compensation, the
largest amount thereof accrued for any of
the two most recently completed Fiscal
Years;
(C) all legal fees and expenses incurred as a
result of such termination (including all
such fees and expenses, if any, incurred in
contesting or disputing any such
termination, in seeking to obtain or enforce
any right or benefit provided by this
Agreement, or in interpreting this
Agreement);
(D) If the Executive desires to relocate within
one year after the Employment Termination
Date, to pay for (or reimburse) all
reasonable moving expenses incurred relating
to a change of principal residence in
connection with such relocation and to
indemnify the Executive in connection with
any loss he may sustain in the sale of his
primary residence; and
(E) Any and all options granted to the Executive
by the Company shall become automatically
and immediately vested and exercisable.
(2) The Executive shall be under no obligation to
seek other employment and there shall be no offset against any amounts due the
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that the Executive may obtain (any amounts due under
Section 9(f) are in the nature of severance payments, or liquidated damages, or
both, and are not in the nature of a penalty).
(3) Unless Executive is terminated for Cause or as a
result of the Executive's death or his resignation, the Company shall maintain
in full force and effect, for the Executive's continued benefit through the
Employment Termination Date, all active and retired Benefit Plans and other
benefit programs or arrangements in which he was entitled to participate
immediately prior to the Employment Terminate Date; PROVIDED, HOWEVER, that
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that participation in any such plan or
program is barred, the Company shall arrange to provide him with benefits
substantially similar to those which he was entitled to receive under such plans
and programs.
Section 10. CERTAIN TAX MATTERS.
(a) OPTIONAL RIGHT OF PARTIAL DISCLAIMER.
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It is recognized that under certain circumstances:
(1) Payments or benefits provided to the Executive
under this Agreement or otherwise pursuant to or by reason of any other
agreement, policy, plan, program or arrangement (including without limitation
any stock option plan) might give rise to an "excess parachute payment" within
the meaning of Section 280G of the Internal Revenue Code of 1986, or any
successor provision thereof.
(2) It might be beneficial to the Executive to
disclaim some portion of the payment or benefit in order to avoid such "excess
parachute payment" and thereby avoid the imposition of an excise tax resulting
therefrom.
(3) Under such circumstances it would not be to the
disadvantage of the Company to permit the Executive to disclaim any such payment
or benefit in order to avoid the "excess parachute payment" and the excise tax
resulting therefrom.
Accordingly, the Executive may, at the Executive's option, exercisable
at any time or from time to time, disclaim any entitlement to any portion of the
payment or benefits arising under this Agreement or otherwise pursuant to or by
reason of any other agreement, policy, plan, program or arrangement (including
without limitation any stock option plan) which would constitute "excess
parachute payments" and it shall be the Executive's choice as to which payments
or benefits shall be so surrendered, if and to the extent that the Executive
exercises such option, so as to avoid "excess parachute payments."
(b) ADDITIONAL PAYMENTS.
(1) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined (as hereafter provided)
that any payment or distribution to or for the Executive's benefit, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise pursuant to or by reason of any other agreement, policy,
plan, program or arrangement (including without limitation any stock option
plan), or similar right (a "PAYMENT"), would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986 (or any successor
provision thereto), or any interest or penalties with respect to such excise tax
(such excise tax, together with any such interest and penalties, are hereafter
collectively referred to as the "EXCISE TAX"), then the Executive shall be
entitled to receive an additional payment or payments (a "GROSS-UP PAYMENT") in
an amount such that, after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the lesser of (A) the Excise Tax imposed upon the
Payments or (B) the Excise Tax that would be imposed upon all payments or
benefits provided under this Agreement (including any stock option agreement) if
such payments or benefits (but only such payments or benefits) constituted in
their entirety "excess parachute payments" as such term is defined in section
280G and 4999 of the Internal Revenue Code of 1986 (or any successor provisions
thereto).
(2) Subject to the provisions of Section 10(b)(5),
all determinations required to be made under this Section 10(b), including
whether an Excise Tax is payable by the Executive, the amount of such Excise
Tax, whether a Gross-Up Payment is required, and the
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amount of such Gross-Up Payment, shall be made by a nationally-recognized legal
or accounting firm (the "FIRM") selected by the Executive in the Executive's
sole discretion. The Executive agrees to direct the Firm to submit its
determination and detailed supporting calculations to both the Executive and the
Company as promptly as practicable. If the Firm determines that any Excise Tax
is payable by the Executive and that a Gross-Up Payment is required, the Company
shall pay the Executive the required Gross-Up Payment within ten (10) business
days after receipt of such determination and calculations. If the Firm
determines that no Excise Tax is payable by the Executive, it shall, at the same
time as it makes such determination, furnish the Executive with an opinion that
the Executive has substantial authority not to report any Excise Tax on the
Executive's federal income tax return. Any determination by the Firm as to the
amount of the Gross-Up Payment shall be binding upon the Executive and the
Company. As a result of the uncertainty in the application of Section 4999 of
the Internal Revenue Code of 1986 (or any successor provision thereto) at the
time of the initial determination by the Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made (an "UNDERPAYMENT"). In the event that the Company exhausts its remedies
pursuant to Section 10(b)(5) and the Executive thereafter is required to make a
payment of any Excise Tax, the Executive may direct the Firm to determine the
amount of the Underpayment (if any) that has occurred and to submit its
determination and detailed supporting calculations to both the Executive and the
Company as promptly as possible. Any such Underpayment shall be promptly paid by
the Company to the Executive, or for the Executive's benefit, within ten
business days after receipt of such determination and calculations.
(3) The Executive and the Company shall each provide
the Firm access to and copies of any books, records and documents in the
possession of the Company or the Executive, as the case may be, reasonably
requested by the Firm, and otherwise cooperate with the Firm in connection with
the preparation and issuance of the determination contemplated by Section
10(b)(2).
(4) The fees and expenses of the Firm for its
services in connection with the determinations and calculations contemplated by
Section 10(b)(2) shall be borne by the Company. If such fees and expenses are
initially paid by the Executive, the Company shall reimburse the Executive the
full amount of such fees and expenses within ten (10) business days after
receipt from the Executive of a statement therefor and reasonable evidence of
the Executive's payment thereof.
(5) The Executive agrees to notify the Company in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of a Gross-Up Payment. Such notification
shall be given as promptly as practicable but no later than ten (10) business
days after the Executive actually receives notice of such claim. The Executive
agrees to further apprise the Company of the nature of such claim and the date
on which such claim is requested to be paid (in each case, to the extent known
by the Executive). The Executive agrees not to pay such claim prior to the
earlier of (a) the expiration of the 30-calendar-day period following the date
on which the Executive gives such notice to the Company and (b) the date that
any payment with respect to such claim is due. If the Company notifies the
Executive in writing at least five (5) business days prior to the expiration of
such period that it desires to contest such claim, the Executive agrees to:
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a) provide the Company with any written records
or documents in the Executive's possession
relating to such claim reasonably requested
by the Company;
b) Company shall reasonably request in writing
from time to time, including without
limitation accepting legal representation
with respect to such claim by an attorney
competent in respect of the subject matter
and reasonably selected by the Company;
c) cooperate with the Company in good faith in
order to effectively contest such claim; and
d) permit the Company to participate in any
proceedings relating to such claim;
PROVIDED, HOWEVER, that the Company shall bear and pay directly all costs and
expenses (including interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive harmless, on an after-tax
basis, from and against any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of this
Section 10(b)(5), the Company shall control all proceedings taken in connection
with the contest of any claim contemplated by this Section 10(b)(5) and, at its
sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim (provided, HOWEVER, that the Executive may participate therein at the
Executive's own cost and expense) and may, at its option, either direct the
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; PROVIDED, HOWEVER, that if the Company directs the Executive to pay
the tax claimed and xxx for a refund, the Company shall advance the amount of
such payment to the Executive on an interest-free basis and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax, including interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, however, that any extension of
the statute of limitations relating to payment of taxes for the Executive's
taxable year with respect to which the contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
any such contested claim shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(6) If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 10(b)(5), the Executive
receives any refund with respect to such claim, the Executive agrees (subject to
the Company's complying with the requirements of Section 10(b)(5)) to promptly
pay to the Company the amount of such refund (together with any interest paid or
credited thereon after any taxes applicable thereto). If, after the Executive's
receipt of an amount advanced by the Company pursuant to Section 10(b)(5), a
determination is made that the Executive is not entitled to any refund with
respect to such claim and the Company does not notify the Executive in writing
of its intent to contest such denial of refund prior to the expiration of thirty
(30) calendar days after such determination, then such advance shall be
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forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid pursuant to this Section 10(b).
Section 11. Registration Rights.
(a) PIGGY-BACK REGISTRATION. If the Company at any time more
than one hundred eighty (180) days following the IPO proposes to register any of
its securities under the Act or pursuant to the Exchange Act, collectively
referred to as the "SECURITIES ACTS," whether or not for sale for its own
account, it will each such time give prompt written notice to the Executive of
its intention to do so (the "REGISTRATION NOTICE"). Upon the written request of
the Executive, made within fifteen (15) business days after the receipt of the
Registration Notice, the Company shall use its best efforts to effect the
registration under the Securities Acts of such amount of the Executive's Common
Stock as the Executive requests, by inclusion of the Executive's Common Stock in
the registration statement that relates to the securities which the Company
proposes to register; PROVIDED, HOWEVER, that if, at any time after giving the
Registration Notice and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason either not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to the Executive (the "REFUSAL NOTICE") and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its obligation to
register the Executive's Common Stock in connection with such terminated
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering the Executive's Common
Stock, for the same period as the delay in registering such other securities.
Notwithstanding any other provision hereof, if in any registration of securities
contemplated hereunder the managing underwriter for such registration of
securities determines in its reasonable discretion that the inclusion of the
Executive's Registrable Securities (or any portion thereof) in such registration
would have a material detrimental effect on such registration, the Executive's
Registrable Securities (or the applicable portion thereof) shall not be included
in such registration.
(b) REGISTRATION EXPENSES. The Company shall pay all
Registration Expenses in connection with each registration of the Executive's
Common Stock pursuant to this Section 11.
(c) SURVIVAL. Notwithstanding anything to the contrary
contained herein, the provisions of this Section 11 shall survive the Employment
Termination Date for a period of one (1) year.
Section 12. INDEMNIFICATION. As an employee, officer and 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
Delaware may be indemnified, 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.
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Section 13. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Miami-Dade County, Florida in accordance with the rules of the American
Arbitration Association then in effect; PROVIDED, HOWEVER, that all arbitration
expenses shall be borne by the Company. Notwithstanding the pendency of any
dispute or controversy concerning termination or the effects thereof, the
Company will continue to pay the Executive his full compensation in effect
immediately before any Notice of Termination giving rise to the dispute was
given (including Base Salary and Incentive Compensation (if any)) and continue
him as a participant in all compensation, benefit and insurance plans in which
he was then participating, until the dispute is finally resolved. Judgment may
be entered on the arbitrators' award in any court having jurisdiction; PROVIDED,
HOWEVER, that the Executive shall be entitled to seek specific performance of
his right to be paid until the Employment Termination Date during the pendency
of any dispute or controversy arising under or in connection with this
Agreement.
Section 15. SUCCESSORS AND ASSIGNS. Except as hereinafter expressly
provided, the agreements, covenants, terms and provisions of this Agreement
shall bind the respective heirs, executors, administrators, successors and
assigns of the parties. Specifically, and not by way of limitation of the
foregoing, the Executive shall be bound by the terms and conditions of this
Agreement to any successor assignee of the Company's rights and obligations
hereunder as a result of any merger, consolidation or sale or lease of all or
substantially all of the Company's business and assets. If 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 fails,
concurrently with the effectiveness of any such succession, to agree in writing
in form and substance reasonably satisfactory to the Executive expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place, then the Executive shall have the right, effected by notice to such
successor not later than ninety (90) days after the effectiveness of such
succession, to terminate the Employment Period under Section 9(e) as though such
failure was an uncured breach by the Company of a material covenant or agreement
of the Company contained in this Agreement. This Agreement is personal in nature
and neither of the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations hereunder, except
as provided in this Section 14.
If the Executive should die while any amounts are payable to
him hereunder, or if by reason of his death payments are to be made to him
hereunder, then this Agreement shall inure to the benefit of and be enforceable
by the Executive's executors, administrators, heirs, distributees, devisees and
legatees and all amounts payable hereunder shall then be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee or other
designee or, if there is no such designee, to this estate.
Section 15. NOTICES. Any notice or other communication required or
desired to be given hereunder shall be in writing and shall be deemed
sufficiently given when personally delivered or delivered by nationally
recognized overnight delivery service, addressed to the parties at their
respective addressed set forth under their respective signatures below or such
other person or addresses as shall be given by notice of any party. Such notice
shall be deemed to be given on the date of delivery.
15
Section 16. WAIVER; REMEDIES CUMULATIVE. No waiver of any right or
option hereunder by any party shall operate as a waiver of any other right or
option, or the same right or option as respects any subsequent occasion for its
exercise, or of any legal remedy. No waiver by any party of any breach of this
Agreement or of any agreement or covenant contained herein shall be held to
constitute a waiver of any other breach or a continuation of the same breach.
All remedies provided by this Agreement are in addition to all other remedies by
it or the law provided.
Section 17. GOVERNING LAW; SEVERABILITY. This Agreement is made and is
expected to be performed in Florida, and the various terms, provisions,
covenants and agreements, and the performance thereof, shall be construed,
interpreted and enforced under and with reference to the laws of the State of
Florida, unless otherwise indicated herein. It is the intention of the Company
and the Executive to comply fully with all laws and matters of public policy
relating to employment agreements and restrictive covenants, and this Agreement
shall be construed consistently with such laws and public policy to the extent
possible. If and to the extent any one or more covenants, agreements, terms and
provisions of this Agreement or any portion or portions thereof shall be held
invalid or unenforceable by a court of competent jurisdiction, then such
covenants, agreements, terms and provisions (or portions thereof) shall be
deemed separable from the remaining covenants, agreements, terms and provisions
of this Agreement and such holding shall in no way affect the validity or
enforceability of any of the other covenants, agreements, terms and provisions
hereof.
Section 18. MISCELLANEOUS. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be modified, changed or amended except in writing signed
by the Executive and the Company. This Agreement may be signed in multiple
counterparts, each of which shall be deemed an original hereof. The captions of
the several sections and subsections of this Agreement are not a part of the
context hereof, are inserted only for convenience in locating such sections and
subsections and shall be ignored in construing this Agreement.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Executive Employment Agreement as of the date first above written.
COMPANY: EXECUTIVE:
BRIGHTSTAR CORP. XXXX XXXXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxx By: /s/ R. Xxxxxxx Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxx Address:
------------------------------ ------------------------
Title: COO
----------------------------- ------------------------
Address: 0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000 ------------------------
