EXHIBIT 10.21
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
14th day of June, 2001, by and between BRIGHTSTAR US, INC. (the "Company"), a
Florida corporation and a subsidiary of Brightstar Corp. ("Brightstar Corp.), a
Delaware corporation, and XXXXXX XXXXXX (the "Executive"). Brightstar Corp. is a
party to this Agreement only for the provisions as set forth in Section 9 and
Section 22 herein.
WHEREAS, the Company wishes to employ the Executive, and the Executive
wishes to be employed by the Company, on the terms and subject to the conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive and the Executive
hereby accepts employment as the President and Chief Operating Officer of the
Company. Executive shall report solely and directly to the Board of Directors of
the Company and the President and Board of Directors of Brightstar Corp.
2. TERM. Subject to the terms and conditions herein, the term of this
Agreement shall commence on July 16,2001 and extend for the period until
termination as provided herein (such term of employment is herein referred to as
the "Employment Period."
3. DUTIES OF THE EXECUTIVE; LOCATION. The Executive shall be employed as
the President and Chief Operating Officer of the Company or in such other
capacity as may be determined by the Chairman or the Board of Directors of the
Company (the "Board") with the consent of the Executive. The Executive shall
exercise such executive duties, responsibilities and authority in relation to
the business and affairs of the Company as are customarily and ordinarily
exercised by executives in similar positions in similar businesses in the United
States and, shall exercise such duties, responsibilities and authority,
consistent with the foregoing, as may from time to time be requested by the
Board. Executive shall use her best efforts to improve and expand the business
of the Company. Accordingly, and not by way of limitation, as the President and
Chief Operating Officer of the Company, the Executive shall (a) establish the
Company's operations in the Chicago area; (b) create and execute the strategy
for the Company's entry into the United States market; (c) create and execute
the ongoing business plan for the Company's United States operations; (d)
provide executive leadership throughout Brightstar Corp.; (e) serve on the
Brightstar Corp. and Company Boards of Directors as long .as existing
shareholders have majority control; (f) perform all other executive functions
normally associated with the positions of the President and Chief Operating
Officer of the Company; and (g) perform other duties, responsibilities and
exercise such other authority, consistent with the foregoing, as required by the
Board. Executive shall perform all such duties and responsibilities in a
trustworthy and
businesslike manner, in compliance with all applicable laws, regulations and
professional and ethical codes and shall devote her full working time and
efforts (except for absences due to illness and appropriate vacations) to the
business and affairs of the Company and the performance of the duties
contemplated herein. It is understood that during the Employment Period, subject
to any conflict of interest policies of the Company, Executive may (i) serve on
the boards of directors of up to two (2) for-profit business enterprises, (ii)
serve in any capacity with any civic, charitable, educational or professional
organization provided that such service does not materially interfere or
conflict with her duties and responsibilities hereunder, and (iii) make and
manage personal investments of her choice. While the Executive's principal place
of employment shall be at the Company's principal executive offices to be
located in the Chicago, IL area, it is understood that Executive will travel as
necessary throughout North America and from time to time elsewhere around the
world as required.
4. COMPENSATION.
4.1. Base Compensation. During the Employment Period, the Company
shall pay the Executive an annual base salary (the "Base Compensation") which
initially shall be at the annualized rate of Three Hundred Twenty Five Thousand
Dollars and 00/100 ($325,000), payable in accordance with the Company's normal
payroll policies (which policies may be changed by the Board from time to time
in its sole discretion, but in no event shall payment be less frequently than
monthly) and shall be subject to all appropriate withholding taxes. The Base
Compensation shall be subject to review by the Board no less frequently than
each twelve (12) months during the Employment Period and shall not be decreased
at any time.
4.2. Incentive Bonus Compensation. The Executive shall be eligible
for incentive bonus compensation for each fiscal year of the Company. The
incentive bonus compensation ("Incentive Bonus Compensation") shall be: (i) 1.5%
of the net income of the Company for fiscal years 2001 and 2002 of the Company,
(ii) 2% of the net income of the Company for fiscal year 2003 of the Company,
and (iii) 3% of the net income of the Company for fiscal years 2004 of the
Company and fiscal years thereafter. Net income will be determined in accordance
with generally accepted accounting principles as if the Company were a stand-
alone entity. Net income will be net of federal and state income taxes and net
of the Incentive Bonus Compensation. The Incentive Bonus Compensation will be
payable no later than thirty (30) days after the issuance of the audited
consolidated financial statements of Brightstar Corp.
4.3. Restricted Shares . The Company hereby grants to the Executive
restricted shares ("Shares") of common stock (the "Common Stock") of the
Company, $.01 par value per share, equal to ten percent (10%) of the issued and
outstanding shares of Common Stock of the Company, as of the date hereof, the
Shares to vest as follows: (i) one-half (1/2) of the Shares to vest after the
completion of one (1) year of continuous employment with the Company under this
Agreement; (ii) one-fourth (1/4th) of the Shares to vest after the completion of
two (2) years of continuous employment with the Company under this Agreement;
and (iii) one-fourth (1/4th) of the Shares to vest after the completion of three
(3) years of continuous employment with the Company under this Agreement;
provided, however, that the Shares shall vest, in their entirety, in the event
of: (i) a Change in Control of the Company and/or Brightstar Corp. or (ii) a
termination by the Company without Cause or a termination by the Executive for
Good Reason. For purposes of this Agreement, a "Change in Control" means (i) any
person, other than the
Company, Brightstar Corp. or any of its affiliates, or an employee benefit plan
established by the Board, acquires, directly or indirectly, the beneficial
ownership of securities issued by the Company and/or Brightstar Corp. having
fifty percent (50%) or more of the voting power of all of the voting securities
issued by the Company and/or Brightstar Corp. in the election of directors at
the meeting of the holders of voting securities to be held for such purpose; or
(ii) the Company and/or Brightstar Corp. merges or consolidates with or
transfers substantially all of its assets to another person other than
Brightstar Corp. or any of its affiliates. The Shares do not confer on the
Executive any right to employment by the Company, nor do they interfere in any
way with (i) any right which the Company may have to terminate the employment or
alter the duties of the Executive at any time consistent with the provisions
herein; or (ii) any right which the Executive may have to terminate her
employment at any time.
5. EXPENSE REIMBURSEMENT. Upon submission of adequate documentation by the
Executive, the Company shall reimburse the Executive for all reasonable expenses
paid or incurred by her in the performance of the services contemplated
hereunder in accordance with the Company's reimbursement policies as determined
from time to time in the sole discretion of the Board. Any disputes as to the
eligibility of an expense for reimbursement shall be resolved in the sole
discretion of the Board.
6. EXECUTIVE BENEFITS; OPTIONS; VACATIONS. During the Employment Period,
the Company shall provide the Executive with such benefits and perquisites,
including, options, vacation time, as are similarly provided to executive
officers of Brightstar Corp. on no less favorable a basis than the basis on
which such benefits and perquisites, including options, are made available to
executive officers of Brightstar Corp. The Company and Brightstar Corp. have the
right, from time to time and in their sole discretion, to modify and amend the
benefits provided to their executive officers, consistent with the provisions
herein. It is understood that in no event shall vacation time for Executive be
less than four (4) weeks each twelve (12) months during the Employment Period
and that Executive shall be on vacation during the period August 11-26, 2001..
7. TERMINATION.
7.1. Termination by the Company. This Agreement may be terminated by
the Company with or without Cause (as defined herein), and shall terminate upon
the Executive's death or Disability (as defined herein), as follows:
7.1.1. Termination with Cause. The Company may terminate this
Agreement with Cause by delivering a Termination Notice (as defined herein) to
the Executive. "Cause" shall be deemed to exist if the Company determines that
the Executive has: (i) been convicted of a felony, a crime involving moral
turpitude or any other crime which, in the reasonable opinion of the Board,
causes the Board to question the Executive's honesty, moral character or fitness
to serve as the President and Chief Operating Officer of the Company, (ii)
committed an act of fraud or dishonesty against the Company, (iii) engaged in
drug or alcohol abuse which prevented the Executive from performing her duties
in the manner contemplated by this Agreement, or (iv) materially breached this
Agreement and failed to cure such breach within ten (10) business days of
receiving written notice thereof from the Company or (v) committed any act(s) of
gross misconduct injurious to the Company.
7.1.2. Termination without Cause. The Company may terminate
this Agreement without Cause by delivering a Termination Notice to the
Executive.
7.1.3. Termination upon Death or Disability. This Agreement
shall terminate upon (a) the Executive's death or (b) the Company's delivery of
a Termination Notice notifying the Executive that this Agreement is to be
terminated on account of the Executive's Disability. "Disability" shall be
deemed to exist if the Executive is unable to perform her normal duties and
responsibilities as contemplated hereunder for ninety (90) days or the
eligibility waiting period under the Company's long term disability policy,
whichever is greater, within any twelve (12) month period due to mental or
physical incapacity. If the Company and the Executive disagree regarding the
existence of a Disability, such disagreement shall be settled by the concurrence
of two out of three licensed physicians (which shall be licensed psychiatrists
if mental incapacity is involved). The Company and the Executive shall each
designate one such physician not later than thirty (30) days after the Company
delivers a Termination Notice to the Executive and the two physicians shall
select a third physician not later than ten (10) days after the selection of the
second physician. The three physicians shall issue a written determination of
the status of the Disability not later than thirty (30) days after the selection
of the third physician. The Company and the Executive shall each be responsible
for all expenses associated with the physician selected by them and shall split
the expenses associated with the third physician.
7.2. Termination by the Executive. The Executive may terminate this
Agreement with or without Good Reason (as defined herein) at her option by
delivering a Termination Notice to the Company as follows:
7.2.1. Termination with Good Reason. The Executive may
terminate this Agreement with Good Reason by delivering a Termination Notice to
the Company. "Good Reason" shall be deemed to exist if the Executive determines
that the Company has without her consent: (i) failed to continue the Executive
in the position of President and Chief Operating Officer of the Company and/or
Chief Operating Officer of Brightstar Corp., (ii) failed to continue the
Executive on the Boards of Directors of the Company and Brightstar Corp. during
the period in which existing shareholders have majority control, (iii)
materially diminished the Executive's duties, responsibilities and/or authority,
(iv) changed the Executive's reporting relationship, (v) assigned duties or
responsibilities to Executive which are materially inconsistent with the
provisions herein, (vi) relocates or takes steps to relocate the principal
executive offices of the Company outside the Chicago, IL area, or (vii)
materially breached this Agreement and failed to cure any such material breach
within ten (10) business days of receiving written notice thereof from the
Executive.
7.2.2. Termination without Good Reason. The Executive may
terminate this Agreement without Good Reason by delivering a Termination Notice
to the Company.
7.3. Termination Notice. Any termination of this Agreement by the
Company or the Executive, except for termination due to the Executive's death,
shall be communicated via written notice (the "Termination Notice") to the other
party.
7.4. Termination Date. "Termination Date" means the date on which
this Agreement shall terminate, effective upon the first to occur of the
following:
7.4.1. If the Executive's employment is terminated by the
Company with Cause pursuant to Section 7.1.1 or without Cause pursuant to
Section 7.1.2 hereof, or for "Disability" pursuant to Section 7.1.3 hereof, the
date on which the Company delivers a Termination Notice to the Executive.
7.4.2. If the Executive's employment is terminated upon the
Executive's death pursuant to Section 7.1.3 hereof, the date of the Executive's
death; or
7.4.3. If the Executive's employment is terminated by action
of the Executive with or without Good Reason pursuant to Sections 7.2.1 or 7.2.2
hereof, the date fifteen (15) days after the Executive delivers a Termination
Notice to the Company.
7.5. Effects of Termination.
7.5.1. If this Agreement is terminated by the Company with
Cause pursuant to Section 7.1.1 hereof, the Executive shall only be entitled to
receive (i) her Base Compensation to the extent accrued and unpaid as of the
Termination Date, (ii) the payments specified in Section 7.5.7 hereof and (iii)
the Shares of common stock of the Company which have vested as of the
Termination Date.
7.5.2. If this Agreement is terminated by the Company without
Cause pursuant to Section 7.1.2 hereof, the Executive shall only be entitled to
receive (i) her Base Compensation for the twelve (12) months following the
Termination Date occurring during the first three (3) years of the Employment
Period or for the six (6) months following the Termination Date occurring
thereafter, and (ii) the payments specified in Section 7.5.7 hereof, (iii)
vesting, in their entirety, of the Shares of common stock of the Company, (iv) a
pro-rata portion of the Incentive Bonus Compensation for the fiscal year during
which termination occurs, (v) medical benefits continuation for the Executive
and her eligible dependents for twelve (12) months at active employee
contribution rates, and (vi) executive level career transition assistance by a
firm selected by Executive and paid for by the Company. If this Agreement is
terminated by the Company (or its successor) without Cause pursuant to Section
7.1.2 hereof within twenty-four (24) months following a Change in Control which
occurred during the first three (3) years of the Employment Period, Executive
shall be entitled to receive the monies and benefits specified hereinabove,
except that the amount of the Base Compensation and Incentive Bonus Compensation
shall be doubled and shall be paid in a single lump sum amount within thirty
(30) days following her Termination Date.
7.5.3. If this Agreement is terminated by the Executive
without Good Reason during the forty-five (45) day period following the one (1)
year anniversary of a Change in Control, the Executive shall be entitled to
receive the monies and benefits specified in Section 7.5.2 in through vi
hereinabove.
7.5.4. If this Agreement is terminated upon the Executive's
death or Disability pursuant to Section 7.1.3 hereof, the Executive or the
Executive's estate, as applicable, shall only be entitled to receive (i) the
Executive's Base Compensation through the Termination Date and (ii) the payments
specified in Section 7.5.7 hereof.
7.5.5. If this Agreement is terminated by action of the
Executive pursuant to Section 7.2.1 hereof, the Executive shall only be entitled
to receive (i) her Base Compensation for the twelve (12) months following the
Termination Date occurring during the first three (3) years of the Employment
Period or for the six (6) months following the Termination Date occurring
thereafter, (ii) the payments specified in Section 7.5.7 hereof, (iii) vesting,
in their entirety, of the Shares of common stock of the Company, (iv) a pro-rata
portion of the Incentive Bonus Compensation for the fiscal year during which
termination occurs, (v) medical benefits continuation for the Executive and her
eligible dependents for twelve (12) months at active employee contribution
rates, and (vi) executive level career transition assistance by a firm selected
by Executive and paid for by the Company. If this Agreement is terminated by the
Executive for Good Reason pursuant to Section 7.2.1 hereof within twenty-four
(24) months following a Change in Control which occurred during the first three
(3) years of the Employment Period, Executive shall be entitled to receive the
monies and benefits specified hereinabove, except that the amount of the Base
Compensation and Incentive Bonus Compensation shall be doubled and shall be paid
in a single lump sum amount within thirty (30) days following her Termination
Date.
7.5.6. If this Agreement is terminated by action of the
Executive pursuant to Section 7.2.2 hereof, the Executive shall only be entitled
to receive (i) her Base Compensation to the extent accrued and unpaid as of the
Termination Date, (ii) the payments specified in Section 7.5.7 hereof, and (iii)
Shares of common stock of the Company which have vested as of the Termination
Date.
7.5.7. In the event that the Executive's employment is
terminated in accordance with the provisions of Section 7 of this Agreement, the
Executive shall be entitled to: (i) be reimbursed for all expenses which, are
properly reimbursable under Section 5 hereof and which were actually incurred as
of the Termination Date, (ii) the balance of any Incentive Bonus Compensation
earned for a prior fiscal year but not yet paid, (iii) a lump sum payment in
respect to any accrued but unused vacation days, (iv) vested benefits and/or
vested options in accordance with the Company's or Brightstar Corp.'s employee
benefit plans and/or option plans covering Executive, and (v) any employee
benefit continuation or conversion rights in accordance with the Company's or
Brightstar Corp.'s employee benefit plans covering Executive.
7.5.8. Any amounts due under this Section 7 may be set off
against any amounts owed to the Company by the Executive. Any and all benefits
that the Executive was otherwise entitled to receive pursuant to Section 6
hereof shall terminate on the Termination Date, except as otherwise provided
hereto.
7.5.9. Except as otherwise provided herein, any payments of
Base Compensation to be made pursuant to Section 7.5 hereof shall be made in
accordance with the Company's normal payment schedules.
7.5.10. In the event of any termination of the Executive's
employment with the Company, the Executive shall be under no obligation to seek
other employment or otherwise mitigate the obligations of the Company under this
Agreement.
8. CONFIDENTIALITY; NON-SOLICITATION.
8.1. Confidential Information. All information relating to the
Company or its Affiliates (as defined herein) to which the Executive is given
access or is made available, or which was previously given or made available to
the Executive, is hereinafter referred to as "Confidential Information."
Confidential Information shall include, without limitation, all methods and
systems, software, names and addresses of customers, suppliers' prices,
technical memoranda, research reports, designs and specifications, new product
and service developments, trademarks or service marks, comparative analyses of
competitive products, services and operating procedures and other information,
data, documents, technology, know how, processes, trade secrets, contracts,
proprietary information, historical and projected financial information,
operating data and organizational and cost structures, now or hereafter existing
or previously developed or acquired, regardless of whether any such information,
data or documents qualify as "trade secrets" under applicable law (collectively,
the "Confidential Information"). Because the secrecy of the Confidential
Information gives the Company and its Affiliates a significant competitive
business advantage, the Executive acknowledges and agrees that the Confidential
Information shall, at all times, be kept in strict confidence by the Executive
and that the Executive shall not, directly or indirectly, during or after the
term of this Agreement, except as required by law, with the prior written
consent of the Company, or when such Confidential Information is otherwise
generally available to the public, (a) disclose to any person or entity any
Confidential Information without the express written consent of the Company
which may be withheld in its sole discretion, or (b) use any Confidential
Information for her own benefit or purposes, for the benefit or purposes of any
other person or entity or in any manner other than for the benefit of, and in
the course of, the Executive's employment by the Company and in furtherance of
the Company's and the Affiliates' (if any) business. As used herein, the term
"Affiliate" means any corporation, partnership or other business entity which
controls, is controlled by or is under common control with, the Company. If the
Executive is required in any civil or criminal legal proceeding, regulatory
proceeding or any similar process to disclose any part of the Confidential
Information, the Executive shall give prompt notice of such request to the
Company so that the Company may seek an appropriate protective order or waive
the Executive's compliance with, the provisions of this Section 8.1.
8.2. Return of Confidential Information. If this Agreement
terminates or expires for any reason or the Company requests the return of the
Confidential Information, all Confidential Information, including, without
limitation, all copies of all documents and other materials which the Executive
has received, prepared or otherwise been given access to, shall be promptly
returned to the Company, along with a certificate signed by the Executive that
all such information has been returned, and that none of the Confidential
Information has been retained by the Executive in any form.
8.3. Non-Compete. During the Employment Period and for a period of
one (1) year thereafter (the "Non-Compete Period"), without the prior written
consent of the Company, which consent may be withheld in its sole discretion,
the Executive may not, directly or indirectly, own, manage, operate, join,
control, be employed by or participate in the ownership, management, operation
or control of, or be connected in any manner with any person or entity engaged
in any business which business is the same or similar to or competitive with
that of the Company or any of its Affiliates, as determined by the Board;
provided, however, that the
Executive may own up to five percent (5%) passive equity interest in any
publicly-traded company without violating this Section 8.3.
8.4. Nonsolicitation of Executives and Customers. The Executive
shall not at any time during the Employment Period and for a period of one (1)
year thereafter (the "Nonsolicitation Period"), without the prior written
consent of the Company, which consent may be withheld in its sole discretion,
directly or indirectly, for herself or for any other person (a) attempt to
employ, employ or enter into any contractual arrangement with any employee or
former employee of the Company or any of its Affiliates (if any), unless such
employee or former employee has not been employed by the Company or any of its
Affiliates (if any) for a period in excess of six (6) months and (b) call on or
solicit any of the actual or prospective customers of the Company or any of its
Affiliates (if any) in the United States, Mexico or Latin America with respect
to any matters related to or competitive with the business of the Company or any
of its Affiliates.
8.5. Injunction. The parties hereto acknowledge and agree that a
breach by the Executive of any of the covenants and agreements contained in this
Section 8 will cause irreparable harm and damage to the Company, the monetary
amount of which will be impossible to ascertain. Accordingly, the Company shall
be entitled, without the posting of a bond, to an injunction from any court of
competent jurisdiction enjoining and restraining any violation of any or all of
the covenants and agreements contained in this Section 8 by the Executive or any
of her affiliates, associates, partners or agents, either directly or
indirectly. Any right to an injunction hereunder shall be cumulative and in
addition to whatever other remedies to which the Company is or may be entitled.
9. DUTIES OF THE EXECUTIVE FOR BRIGHTSTAR CORP. During the Term of this
Agreement, the Executive shall serve as the Chief Operating Officer of
Brightstar Corp. without any other additional compensation. As Chief Operating
Officer of Brightstar Corp., Executive shall exercise such executive duties,
responsibilities and authority in relation to the business and affairs of
Brightstar Corp. as are customarily and ordinarily exercised by executives in
similar positions in similar businesses in the United States and, shall exercise
such duties, responsibilities and authority, consistent with the foregoing, as
may from time to time be requested by the Board of Directors of Brightstar Corp.
10. BOOKS AND RECORDS. All books, records, documents, accounts and other
materials of any kind regarding the Company or any of its Affiliates (if any),
including, without limitation, marketing materials, electronic mail, and
computer files, tapes and discs, and all copies, summaries or extracts of any
such materials, whether prepared by the Executive or otherwise coming into the
Executive's possession, shall be the exclusive property of the Company and shall
be returned immediately to the Company upon the expiration or termination of
this Agreement for any reason or upon request by the President or the Board. The
Executive's obligations under this Section 10 shall exist whether or not any of
these materials contain Confidential Information. The parties hereto shall
comply with all applicable laws and regulations regarding retention of and
access to this Agreement and all books, documents and records in connection
therewith.
11. NOTICES. Any notice required or permitted to be given hereunder shall
be written and sent by (a) certified mail, return receipt requested, (b)
recognized overnight delivery service, or (c) hand delivery to the following
addresses:
To the Company: Brightstar US, Inc.
0000 X. X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Chairman
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx Center - 20th Floor
Xxxxx, Xxxxxxx 00000
To the Executive: Xxxxxx Xxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx,XX 00000
or to such other address as either party may designate by means of a notice
complying with the terms of this Section 10. Each such notice shall be deemed
delivered on the date the return receipt is signed, delivered or refused or the
notice is designated by the postal authorities as not deliverable, if mailed, or
on the date delivered to the addressee or an authorized representative of the
addressee if by overnight delivery service or hand delivery.
12. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
13. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and its successors and permitted
assigns. Notwithstanding, this Agreement and all of the rights and obligations
hereunder shall not be assignable by the Executive. No rights or obligations of
the Company under this Agreement may be assigned or transferred by the Company
except that such rights and obligations may be assigned or transferred pursuant
to a reconstruction, amalgamation, merger, consolidation or other combination in
which the Company is not the continuing entity, or a sale or liquidation of all
or substantially all of the business and assets of the Company, provided that
the assignee or transferee is the successor to all or substantially all of the
business and assets of the Company and such assignee or transferee expressly
assumes the liabilities, obligations and duties of the Company as set forth in
this Agreement. In the event of any reconstruction, amalgamation, merger,
consolidation, other combination, sale of business and assets, or liquidation as
described in the preceding sentence, the Company shall use its best reasonable
efforts to cause such assignee or transferee to promptly and expressly assume
the liabilities, obligations and duties of the Company hereunder.
14. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior understandings,
discussions or
agreements (both written or oral) between the Company and the Executive with
respect to the subject matter hereof. This Agreement may not be modified or
amended except by the mutual written agreement of both parties hereto.
15. SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on there being valid in law, and, in the
event that any one or more words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid, this Agreement shall be
construed as if such invalid word, phrase, sentence, clause or Section had not
been inserted. If such invalidity is caused by length of time or size of area,
or both, the otherwise invalid provision will be considered to be reduced to a
period or area which would cure such invalidity.
16. WAIVER. The waiver by either party of the other party's prompt and
complete performance, or breach or violation, of any provision of this Agreement
shall not operate nor be construed as a waiver of any subsequent breach or
violation, and the failure by any party hereto to exercise any right or remedy
which it may possess hereunder shall not operate nor be construed as a bar to
the exercise of such right or remedy by such party upon the occurrence of any
subsequent breach or violation.
17. SURVIVAL. The parties hereto specifically acknowledge and agree that
all of the provisions of Sections 8, 10, 12, 21, and 22, and such other
provisions of this Agreement shall survive (a) the expiration of the Employment
Period of this Agreement or (b) the termination of this Agreement for any
reason, as necessary to carry out the intentions of the parties expressed
herein.
18. CAPTIONS. The captious of this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision hereof.
19. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and both of which together shall constitute a
single agreement.
20. RESOLUTION OF DISPUTES. Any claim arising out of or relating to this
Agreement, any other agreement between the Executive and the Company or any of
its affiliates, the Executive's employment with the Company or the termination
thereof (collectively, "Covered Claims") shall (except as otherwise provided in
Section 8.5 with respect to certain requests for injunctive relief) be resolved
by binding confidential arbitration in accordance with the National Rules for
the Resolution of Employment Disputes of the American Arbitration Associate and
this Section 20. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The Company shall promptly and
currently pay one half of all documented costs and expenses (including, without
limitation, reasonable attorneys' fees and other charges of counsel) incurred by
the Executive or her beneficiaries in resolving any such Covered Claim, subject
to the Executive contemporaneously also paying her one-half share and also
subject to the Company receiving a written undertaking from the recipient to
repay any such reimbursed costs or expenses to the extent that the recipient
fails to substantially prevail with respect to such Covered Claim. Pending the
resolution of any Covered Claim, the Executive
(and her beneficiaries) shall continue to receive all undisputed payments and
benefits due under this Agreement or otherwise, except to the extent that the
arbitrator(s) otherwise provide.
21. INDEMNIFICATION. The Company shall indemnify and hold Executive
harmless to the fullest extent permitted by law and under the bylaws of the
Company, as permitted by law, as, to and from any and all costs, expenses
(including reasonable attorneys' fees, which shall be paid in advance by the
Company as incurred, subject to recoupment in accordance with applicable law) or
damages incurred by the Executive as a result of any claim, suit, action or
judgment arising out of the activities of the Company, Brightstar Corp. or the
Executive's activities as an employee, officer or director of the Company and/or
Brightstar Corp.
22. GUARANTEE. Brightstar Corp. hereby guarantees the obligations of the
Company hereunder.
IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
XXXXXX XXXXXX BRIGHTSTAR US, INC.
EXECUTIVE THE COMPANY
/s/ Xxxxxx Xxxxxx By: /s/ R. Xxxxxxx Xxxxxx
--------------------------- ----------------------------
Name: R. XXXXXXX XXXXXX
Its: CEO
BRIGHTSTAR CORP.
By: /s/ R. Xxxxxxx Xxxxxx
----------------------------
Name: R. XXXXXXX XXXXXX
Its: PRESIDENT & CEO
