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EXHIBIT 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT dated as of July 1, 1999 between
BRIGHTPOINT, INC., a Delaware corporation (the "Employer" or the "Company"), and
XXXXXXX X. XXXXXXXX (the "Employee").
WHEREAS, the Employer has employed the Employee as its Executive Vice
President, Treasurer and Chief Financial Officer since October 14, 1996 and on
January 1, 1997 entered into an employment agreement with Employee, which
employment agreement was amended by letter agreement dated July 16, 1998 (as
amended, the "Employment Agreement");
WHEREAS, Employer and Employee wish to amend the Employment Agreement
further and to restate such Employment Agreement to include all amendments made
to date;
NOW, THEREFORE, the Employer and Employee hereby amend and restate the
Employment Agreement to read in its entirety as follows:
W I T N E S S E T H :
WHEREAS, the Employer desires to employ the Employee as its Executive
Vice President, Treasurer and Chief Financial Officer, to be assured of his
services as such on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on such
terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and intending to be legally bound hereby, the Employer
and the Employee hereby agree as follows:
I. Term. Employer hereby agrees to employ Employee, and Employee hereby
agrees to serve Employer for a three-year period commencing effective as of the
date of this Agreement (the "Effective Date") (such period being herein referred
to as the "Initial Term," and any year commencing on the Effective Date or any
anniversary of the Effective Date being hereinafter referred to as an
"Employment Year"). After the Initial Term and on the last day of any Employment
Year thereafter, this Agreement shall be automatically renewed for successive
one year periods (each such period being referred to as a "Renewal Term"),
unless, more than ninety (90) days prior to the expiration of the Initial Term
or any Renewal Term, either the Executive or the Company gives written notice
that employment will not be renewed ("Notice of Non-Renewal"), whereupon (i) if
the Executive gives the Notice of Non-Renewal, the term of the Executive's
employment shall terminate upon the expiration of the Initial Term or the then
current Renewal Term, as the case may be, or (ii) if the Company gives the
Notice of Non-Renewal or terminates this Agreement without Cause, the term of
the Executive's employment shall be for a final three (3) year period (the
"Final Renewal Term"), commencing effective at the date of the Notice of
Non-Renewal, unless sooner terminated pursuant to Section 6 hereof.
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II. Employee Duties.
A. During the term of this Agreement, the Employee shall have the
duties and responsibilities attached hereto as Exhibit A, reporting directly to
the President of Employer and the Board of Directors of the Employer (the
"Board"). It is understood that such duties and responsibilities shall be
reasonably related to the Employee's position.
B. The Employee shall devote substantially all of his business time,
attention, knowledge and skills faithfully, diligently and to the best of his
ability, in furtherance of the business and activities of the Company. The
principal place of performance by the Employee of his duties hereunder shall be
the Company's principal executive offices, although the Employee may be required
to travel outside of the area where the Company's principal executive offices
are located in connection with the business of the Company.
III. Compensation.
A. During the term of this Agreement, the Employer shall pay the
Employee a salary (the "Salary") at a rate of $225,000 per annum in respect of
each Employment Year, payable in equal monthly installments on the first day of
each month, or at such other times as may mutually be agreed upon between the
Employer and the Employee. Such Salary may be increased from time to time at the
discretion of the Board.
B. In addition to the foregoing, the Employee shall be entitled to such
other cash bonuses and such other compensation in the form of stock, stock
options or other property or rights as may from time to time be awarded to him
by the Board during or in respect of his employment hereunder.
IV. Benefits.
A. During the term of this Agreement, the Employee shall have the right
to receive or participate in all existing and future benefits and plans which
the Company may from time to time institute during such period for its executive
officers (the "Executive Officers") and for which the Employee is eligible.
Nothing paid to the Employee under any plan or arrangement presently in effect
or made available in the future shall be deemed to be in lieu of the salary or
any other obligation payable to the Employee pursuant to this Agreement.
B. During the term of this Agreement, the Employee will be entitled to
the number of paid holidays, personal days off, paid vacation days and sick
leave days in each calendar year as are determined by the Company from time to
time. Such paid vacation may be taken in the Employee's discretion with the
prior approval of the Employer, and at such time or times as are not
inconsistent with the reasonable business needs of the Company.
V. Travel Expenses. All travel and other expenses incident to the
rendering of services reasonably incurred on behalf of the Company by the
Employee during the term of this Agreement shall be paid by the Employer
provided that such expenses are incurred in accordance with the Company's
policies. If any such expenses are paid in the first instance by the
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Employee, Employer shall reimburse him therefor on presentation of appropriate
receipts for any such expenses.
VI. Termination. Employee's employment under this Agreement may be
terminated without any breach of this Agreement only on the following
circumstances:
6.1. Death. The Employee's employment under this Agreement shall
terminate upon his death.
6.2. Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his duties
under this Agreement for 180 consecutive calendar days during any calendar year,
the Employer may terminate the Employee's employment under this Agreement.
6.3. Cause. The Employer may terminate the Employee's employment under
this Agreement for Cause. For purposes of this Agreement, the Employer shall
have "Cause" to terminate the Employee's employment under this Agreement upon
(a) the willful and continued failure by the Employee to substantially perform
his duties under this Agreement (other than any such failure resulting from the
Employee's incapacity due to physical or mental illness) after demand for
substantial performance is delivered by the Employer, in writing, specifically
identifying the manner in which the Employer believes the Employee has not
substantially performed his duties and the Employee fails to perform as required
within 30 days after such demand is made, (b) the willful engaging by the
Employee in criminal misconduct (including embezzlement and criminal fraud)
which is materially injurious to the Employer, monetarily or otherwise or (c)
the conviction of the Employee of a felony and the expiration of the time to
appeal such conviction. For purposes of this paragraph, no act, or failure to
act, on the Employee's part shall be considered "willful" unless done, or
omitted to be done, by him not in good faith and without reasonable belief that
his action or omission was in the best interest of the Employer.
Notwithstanding the foregoing, the Employee shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
the Employee a copy of a resolution, duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board (other than the
Employee) at a meeting of the Board called and held for such purpose (after
reasonable written notice to the Employee and an opportunity for him, together
with his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board, the Employee was guilty of conduct set forth above in
clause (a), (b) or (c), and specifying the particulars thereof in detail.
6.4. Termination by the Employee for Good Reason, Upon a Change of
Control or Because of Ill Health. The Employee may terminate his employment
under this Agreement (a) for Good Reason (as hereinafter defined), (b) at any
time within twelve months after a Change of Control, or (c) if his health should
become impaired to any extent that makes the continued performance of his duties
under this Agreement hazardous to his physical or mental health or his life,
provided that, in the latter case, the Employee shall have furnished the
Employer with a written statement from a qualified doctor to such effect and
provided, further,
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that at the Employer's request and expense the Employee shall submit to an
examination by a doctor selected by the Employer and such doctor shall have
concurred in the conclusion of the Employee's doctor; provided if the Employer's
doctor does not concur, the Employee's and Employer's doctors shall select a
third physician whose determination shall be binding.
6.4.1. Good Reason. For purposes of this Agreement, "Good Reason"
shall mean (a) any assignment to the Employee of any duties or reporting
obligations other than those contemplated by, or any limitation of the powers of
the Employee in any respect not contemplated by, this Agreement, (b) failure by
the Employer to comply with its obligations and agreements contained in this
Agreement, (c) failure of the Employer to obtain the assumption of the agreement
to perform this Agreement by any successor as contemplated in Section 9(g) of
this Agreement. With respect to the matters set forth in clauses (a), (b) and
(c) of this paragraph, the Employee must give the Employer 30 days prior written
notice of his intent to terminate this Agreement as a result of any breach or
alleged breach of the applicable provision and the Employer shall have the right
to cure any such breach or alleged breach within such 30 day period.
6.4.2. Change of Control. For purposes of this Agreement, a
"Change of Control" shall be deemed to occur, unless previously consented to in
writing by the Employee, upon (a) individuals who, as of the date hereof,
constitute the Board of Directors of the Employer (the "Incumbent Board")
ceasing for any reason to constitute at least a majority of the Board of
Directors of the Employer (the "Board"); provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Employer's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs in connection with a Combination, as defined below, or as a result
of either an actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the
Board; (b) the acquisition of beneficial ownership (as determined pursuant to
Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the voting
securities of the Employer by any person, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) not affiliated with the
Employee or the Employer; provided, however, that no Change of Control shall be
deemed to have occurred for purposes of this Agreement if such person, entity or
group acquires beneficial ownership of 15% or more of the voting securities of
the Employer (i) as a result of a combination of the Employer or a wholly-owned
subsidiary of the Employer with such person, entity or group or another entity
owned or controlled by such person, entity or group (whether effected by a
merger, consolidation, sale of assets or exchange of stock or otherwise) (a
"Combination") and (ii) (x) executive officers of the Employer (as designated by
the Board for purposes of Section 16 of the Exchange Act) immediately prior to
the Combination constitute not less than 50% of the executive officers of the
Employer for a period of not less than six (6) months after the Combination (for
purposes of calculating the executive officers of the Employer after the
Combination, those executive officers who are terminated by the Employer for
Cause or who terminate their employment without Good Reason shall be excluded
from the calculation entirely), and (y) the members of the Incumbent
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Board immediately prior to the Combination constitute not less than 50% of the
membership of the Board after the Combination and (z) after the Combination,
more than 35% of the voting securities of the Employer is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners of the outstanding voting securities
of the Employer immediately prior to the Combination, it being understood that
while the existence of a Change in Control pursuant to this Section 6.4.2(b) may
not be ascertainable for six (6) months after the Combination, if it is
ultimately determined that such Combination constituted a Change in Control, the
date of the Change of Control shall be the effective date of the Combination;
(c) the commencement of a proxy contest against the management for the election
of a majority of the Board of the Employer if the group conducting the proxy
contest owns, has or gains the power to vote at least 15% of the voting
securities of the Employer; (d) the consummation of a reorganization, merger or
consolidation, or the sale, transfer or conveyance of all or substantially all
of the assets of the Employer to any person or entity not affiliated with the
Employee or the Employer unless, following such reorganization, merger,
consolidation, sale, transfer or conveyance, the conditions set forth in clause
(b)(ii) above are present; or (e) the complete liquidation or dissolution of the
Employer.
VII. Notice of Termination.
Any termination of the Employee's employment by the Employer or by the
Employee (other than termination by reason of the Employee's death) shall be
communicated by written Notice of Termination to the other party of this
Agreement. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
VIII. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's employment
is terminated by his death, the date of his death, (b) if the Employee's
employment is terminated pursuant to Section 6.2 above, the date on which the
Notice of Termination is given, (c) if the Employee's employment is terminated
pursuant to Section 6.3 above, the date specified on the Notice of Termination
after the expiration of any cure periods and (d) if the Employee's employment is
terminated for any other reason, the date on which a Notice of Termination is
given after the expiration of any cure periods.
IX. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by reason of his
death, the Employer shall pay to such person as he shall designate in writing
filed with the Employer, or if no such person shall be designated, to his estate
as a lump sum benefit, his full Salary to the date of his death in addition to
any payments the Employee's spouse, beneficiaries or estate may be entitled to
receive pursuant to any pension or employee benefit plan or life insurance
policy or similar plan or policy then maintained by the Employer, and such
payments shall, assuming the Employer is in compliance with the provisions of
this Agreement, fully discharge the Employer's
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obligations with respect to Section 3 of this Agreement, but all other
obligations of the Employer under this Agreement, including the obligations to
indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the
Employee shall continue to receive his Salary until the Employee's employment is
terminated pursuant to Section 6.2 of this Agreement, or until the Employee
terminates his employment pursuant to Section 6.4(c) of this Agreement,
whichever first occurs. After termination, the Employee shall be paid, in equal
monthly installments, 100% of his Salary, at the rate in effect at the time
Notice of Termination is given, for one year, and thereafter for one additional
year at an annual rate equal to 50% of the Salary which would have been in
effect under this Agreement, plus, in each case, any disability payments
otherwise payable by or pursuant to plans provided by the Employer to its
executive officers. To the extent physically and mentally capable of so doing
without potentially impairing or damaging his health, the Employee shall provide
consulting services to the Employer during the period that he is receiving
payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or
terminated by the Employee without Good Reason prior to or more than twelve
months after, a Change of Control, the Employer shall pay the Employee his full
Salary through the Date of Termination, at the rate in effect at the time Notice
of Termination is given, and the Employer shall, assuming the Employer is in
compliance with the provisions of this Agreement, have no further obligations
with respect to Section 3 of this Agreement, but all other obligations of the
Employer under this Agreement, including the obligations to indemnify, defend
and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate
the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it
being understood that a purported termination pursuant to Section 6.2 or 6.3
hereof which is disputed and finally determined not to have been proper shall be
a termination by the Employer in breach of this Agreement), including as a
result of a Change of Control, or (B) the Employee shall terminate his
employment for Good Reason or at any time within twelve months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of
any further payments pursuant to Section 3 of this Agreement), Severance Pay (as
hereinafter defined), payable on the first day following the Date of
Termination, as follows:
(A) if the Employee, without Good Reason, terminates his
employment at any time within twelve months after a Change of Control (provided
that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement,
it is ascertainable on the date of such Termination that such Change of Control
has occurred), or if, prior to and not as a result of a Change of Control, the
Employee's employment is terminated either by the Employee
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for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3
hereof, a lump sum amount equal to the highest of (a) $675,000 or (b) total
compensation (including the value of all perquisites, such as health and life
insurance and car allowance, etc.) received or earned by the Employee from the
Employer during the twelve months prior to the Termination Date, multiplied by
three (3), or
(B) if after or as a result of a Change of Control, the
Employee's employment is terminated either by the Employee for Good Reason or by
the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to six (6) times: (i) the total compensation received or earned
(including the value of all perquisites, such as health and life insurance and
car allowance, etc.) and (ii) the value of all stock options granted to the
Employee by the Employer, during the twelve (12) months prior to such Date of
Termination (in case of either (ii)(A) or (ii)(B), "Severance Pay"); and
(iii) all other damages to which the Employee may be entitled as a
matter of law or equity as result of the termination of his employment under
this Agreement, including all costs and expense and expenses incurred by him
(including attorneys fees) in contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit provided by this Agreement.
(iv) The value of the stock options described above will be
determined using a Black-Scholes valuation methodology by an investment bank
reasonably acceptable to both Company and Employee. The fees for such valuation
will be paid by the Company.
(e) The amount (if any) payable pursuant to this Section 9(d) (the
"Severance Total") shall be increased by an amount (the "Increase") sufficient
so that after the payment by the Employee of (A) any income taxes on the
Increase and (B) any excise tax on the sum of (I) the Severance Total and (II)
the Increase, the Employee shall have received an amount (net of such taxes)
equal to the Severance Total. The Employee shall be entitled to receive
initially the entire Severance Total (together with any such additional payments
required to cover any excise and income taxes payable as aforesaid) and shall
not be required to repay to the Employer any amount which is ultimately and
finally determined by the Internal Revenue Service (or an appropriate court) to
have been in excess of the amount permitted to be received without incurring
such excise tax, and Employer agrees to use its best efforts to support the
Employee's position that such amounts are not subject to excise tax in any
dispute with the Internal Revenue Service or in any other administrative or
judicial proceedings.
(f) The Employee shall not be required to mitigate the amount of any
payment provided for in this Section 9 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 9 be reduced by
any compensation earned by the Employee as the result of employment by another
employer or business or by profits earned by the Employee from any other source
at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and substance satisfactory to the Employee, to
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expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Employer would be required to perform it if no such
succession had taken place. Failure of the Employer to obtain such Agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Employee to compensation from the Employer in
the same amount and on the same terms as he would be entitled to under Section
9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
"Employer" shall mean the Employer and any successor to its business and/or
assets which executes the Agreement or which otherwise becomes bound by the
terms and conditions of this Agreement by operation of law.
(h) (A) Upon the occurrence of a Change of Control, or (B) if in breach
of this Agreement, the Employer shall terminate the Employee's employment other
than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a
purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed
and finally determined not to have been proper shall be a termination by the
Employer in breach of this Agreement), or (C) if the Employee shall terminate
his employment for Good Reason at any time, then notwithstanding the vesting and
exercisability schedule in any stock option agreement between Employer and
Employee, all unvested stock options granted by the Employer to the Employee
pursuant to such agreement shall immediately vest and become exercisable and
shall remain exercisable for not less than 180 days thereafter.
X. Confidentiality; Noncompetition.
A. The Employer and the Employee acknowledge that the services to be
performed by the Employee under this Agreement are unique and extraordinary and,
as a result of such employment, the Employee will be in possession of
confidential information relating to the business practices of the Company. The
term "confidential information" shall mean any and all information (verbal and
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by the
Employee to be in the public domain (such information not being deemed to be in
the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 10(a), including, but not limited to, information
relating to: trade secrets, personnel lists, financial information, research
projects, services used, pricing, customers, customer lists and prospects,
product sourcing, marketing and selling and servicing. The Employee agrees that
he will not, during or for a period of two years after the termination of
employment, directly or indirectly, use, communicate, disclose or disseminate to
any person, firm or corporation any confidential information regarding the
clients, customers or business practices of the Company acquired by the Employee
during his employment by Employer, without the prior written consent of
Employer; provided, however, that the Employee understands that Employee will be
prohibited from misappropriating any trade secret (as defined for purposes of
Indiana law) at any time during or after the termination of employment.
B. The Employee hereby agrees that he shall not, during the period of
his employment and for a period of two (2) years following such employment,
directly or indirectly, within any county (or adjacent county) in any State
within the United States or territory outside
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the United States in which the Company is engaged in business during the period
of the Employee's employment or on the date of termination of the Employee's
employment, engage, have an interest in or render any services to any business
(whether as owner, manager, operator, licensor, licensee, lender, partner,
stockholder, joint venturer, employee, consultant or otherwise) competitive with
the Company's principal business activities. Notwithstanding the foregoing,
Employee shall be permitted to own (as a passive investment) not more than 5% of
any class of securities which is publicly traded; provided, however that said 5%
limitation shall apply to the aggregate holdings of Employee and those of all
other persons and entities with whom Employee has agreed to act for the purpose
of acquiring, holding, voting or disposing of such securities.
C. The Employee hereby agrees that he shall not, during the period of
his employment and for a period of two (2) years following such employment,
directly or indirectly, take any action which constitutes an interference with
or a disruption of any of the Company's business activities including, without
limitation, the solicitations of the Company's customers, or persons listed on
the personnel lists of the Company. At no time during the term of this
Agreement, or thereafter shall the Employee directly or indirectly, disparage
the commercial, business or financial reputation of the Company.
D. For purposes of clarification, but not of limitation, the Employee
hereby acknowledges and agrees that the provisions of subparagraphs 10(b) and
(c) above shall serve as a prohibition against him, during the period referred
to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of the Company, including
the Employee, (but only those suppliers existing during the time of the
Employee's employment by the Company, or at the termination of his employment),
to discontinue or alter his, her or its relationship with the Company.
E. Upon the termination of the Employee's employment for any reason
whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Employee including all copies thereof, shall
be promptly returned to the Company.
F. 1. The Employee agrees that all processes, technologies and
inventions ("Inventions"), including new contributions, improvements, ideas and
discoveries, whether patentable or not, conceived, developed, invented or made
by him during his employment by Employer shall belong to the Company, provided
that such Inventions grew out of the Employee's work with the Company, are
related in any manner to the business (commercial or experimental) of the
Company or are conceived or made on the Company's time or with the use of the
Company's facilities or materials. The Employee shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of his inventorship;
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2. If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Employee within two
years after the termination of his employment by the Company, it is to be
presumed that the Invention was conceived or made during the period of the
Employee's employment by the Company; and
3. The Employee agrees that he will not assert any rights to any
Invention as having been made or acquired by him prior to the date of this
Agreement, except for Inventions, if any, disclosed to the Company in writing
prior to the date hereof.
G. The Company shall be the sole owner of all products and proceeds of
the Employee's services hereunder, including, but not limited to, all materials,
ideas, concepts, formats, suggestions, developments, arrangements, packages,
programs and other intellectual properties that the Employee may acquire,
obtain, develop or create in connection with and during the term of the
Employee's employment hereunder, free and clear of any claims by the Employee
(or anyone claiming under the Employee) of any kind or character whatsoever
(other than the Employee's right to receive payments hereunder). The Employee
shall, at the request of the Company, execute such assignments, certificates or
other instruments as the Company may from time to time deem necessary or
desirable to evidence, establish, maintain, perfect, protect, enforce or defend
its right, or title and interest in or to any such properties.
H. The parties hereto hereby acknowledge and agree that (i) the Company
would be irreparably injured in the event of a breach by the Employee of any of
his obligations under this Section 10, (ii) monetary damages would not be an
adequate remedy for any such breach, and (iii) the Company shall be entitled to
injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach.
I. The parties hereto hereby acknowledge that, in addition to any other
remedies the Company may have under Section 10(h) hereof, the Company shall have
the right and remedy to require the Employee to account for and pay over to the
Company all compensation, profits, monies, accruals, increments or other
benefits (collectively, "Benefits") derived or received by the Employee as the
result of any transactions constituting a breach of any of the provisions of
Section 10, and the Employee hereby agrees to account for and pay over such
Benefits to the Company.
J. Each of the rights and remedies enumerated in Section 10(h) and
10(i) shall be independent of the other, and shall be severally enforceable, and
all of such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to the Company under law or in equity.
K. If any provision contained in this Section 10 is hereafter construed
to be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid portions.
L. If any provision contained in this Section 10 is found to be
unenforceable by reason of the extent, duration or scope thereof, or otherwise,
then the court making such
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determination shall have the right to reduce such extent, duration, scope or
other provision and in its reduced form any such restriction shall thereafter be
enforceable as contemplated hereby.
M. It is the intent of the parties hereto that the covenants contained
in this Section 10 shall be enforced to the fullest extent permissible under the
laws and public policies of each jurisdiction in which enforcement is sought
(the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 10 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of said
provision in any other jurisdiction.
XI. Indemnification. The Employer shall indemnify and hold harmless the
Employee against any and all expenses reasonably incurred by him in connection
with or arising out of (a) the defense of any action, suit or proceeding in
which he is a party, or (b) any claim asserted or threatened against him, in
either case by reason of or relating to his being or having been an employee,
officer or director of the Company, whether or not he continues to be such an
employee, officer or director at the time of incurring such expenses, except
insofar as such indemnification is prohibited by law. Such expenses shall
include, without limitation, the fees and disbursements of attorneys, amounts of
judgments and amounts of any settlements, provided that such expenses are agreed
to in advance by the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer's Certificate of
Incorporation or Bylaws, and shall apply with respect to any matters
attributable to periods prior to the Effective Date, and to matters attributable
to his employment hereunder, without regard to when asserted.
XII. General. This Agreement is further governed by the following
provisions:
A. Notices. All notices relating to this Agreement shall be in writing
and shall be either personally delivered, sent by telecopy (receipt confirmed)
or mailed by certified mail, return receipt requested, to be delivered at such
address as is indicated below, or at such other address or to the attention of
such other person as the recipient has specified by prior written notice to the
sending party. Notice shall be effective when so personally delivered, one
business day after being sent by telecopy or five days after being mailed.
To the Employer: Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
To the Employee: Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
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With, in either case, a copy in the same manner to:
Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
B. Parties in Interest. Employee may not delegate his duties or assign
his rights hereunder. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
C. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Employee by the Employer and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever. Any modification or termination of this Agreement will be
effective only if it is in writing signed by the party to be charged.
D. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana. Employee agrees to and hereby
does submit to jurisdiction before any state or federal court of record in
Xxxxxx County, Indiana, or in the state and county in which such violation may
occur, at Employer's election.
E. Warranty. Employee hereby warrants and represents as follows:
1. That the execution of this Agreement and the discharge of
Employee's obligations hereunder will not breach or conflict with any other
contract, agreement, or understanding between Employee and any other party or
parties.
2. Employee has ideas, information and know-how relating to the
type of business conducted by Employer, and Employee's disclosure of such ideas,
information and know-how to Employer will not conflict with or violate the
rights of any third party or parties.
F. Severability. In the event that any term or condition in this
Agreement shall for any reason be held by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other term or condition of this
Agreement, but this Agreement shall be construed as if such invalid or illegal
or unenforceable term or condition had never been contained herein.
G. Execution in Counterparts. This Agreement may be executed by the
parties in one or more counterparts, each of which shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ J. Xxxx Xxxxxx
---------------------------------------
J. Xxxx Xxxxxx, President & COO
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
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EXHIBIT "A"
DUTIES AND RESPONSIBILITIES
The duties and responsibilities of the Executive Vice President and
Chief Financial Officer include, but are not limited to, the following:
1. Management of the corporate finance staff including Corporate
Controller, Vice President of Corporate Finance, Director of Internal
Audit, and the staff reporting thereto.
2. Development and implementation of strategies relating to accounting and
reporting, capital structure, and corporate finance activities.
3. Management of relationships with independent auditors, investment
banks, commercial banks and securities counsel.
4. External reporting, including SEC reporting and compliance.
5. Maintenance and development of adequate and appropriate levels of
capital.
6. Negotiation of material contracts.
7. Strategic planning.
8. Participation in Executive Committee activities.
9. Investor relations and communications with analysts.
10. Risk management.
11. Development and implementation of federal, state and foreign tax
strategies.
12. Other duties consistent with the position of Executive Vice President,
Treasurer and Chief Financial Officer that may be assigned from time to
time by the President & COO, CEO or board of directors.
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