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EXHIBIT 10.35
BRIGHTPOINT, INC.
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July 16, 1998
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Brightpoint, Inc.
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RE: EMPLOYMENT AGREEMENT DATED AS OF JANUARY 1, 1997 BETWEEN
BRIGHTPOINT, INC. (THE "EMPLOYER" OR "COMPANY") AND ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ (THE "EMPLOYEE")
Dear ▇▇. ▇▇▇▇▇▇▇▇:
The purpose of this letter is to clarify and amend the Agreement
and to provide consistency in the employment terms of senior management of the
Company. All capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Agreement.
1. Section 1 is hereby amended to provide that the Effective
Date (as such term is defined in such agreement) shall be the date of this
amendment letter.
2. Section 6.4.2(a) is amended by adding the following
language at the end of the provision:
"; provided, however, that no Change of Control shall be deemed
to have occurred for purposes of this Agreement if such person or
entity acquires 15% or more of the voting securities of the
Employer (a) as a result of a combination of the Employer or a
wholly-owned subsidiary of Employer with another entity owned or
controlled by such persons or entity (whether effected by a
merger, sale of assets or exchange of stock or otherwise) (the
"Combination") and (b) after completion of the Combination and
for a period of not less than twelve (12) months thereafter (i)
executive officers of the Employer (as designated in the
Employer's most recent Annual Report on Form 10-K or its most
recent Proxy Statement filed with the Securities and Exchange
Commission with respect to its Annual Meeting of Stockholders)
immediately prior to
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the Combination constitute not less than 50% of the executive officers
of the Employer after the Combination or (ii) the members of the Board
of Directors of Employer immediately prior to the Combination
constitute not less than 50% of the membership of the Board of
Directors of the Employer 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."
3. Section 9(d)(ii) is hereby amended by deleting subsection
(A) in its entirety and replacing it with the following subsections:
(A) if the Employee, without Good Reason, terminates his
employment at any time within twelve months after a Change of Control, or if,
prior to and not 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 the
highest of (a) $450,000 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 three (3) times the total compensation received or earned
(including the value of all perquisites, such as health and life insurance and
car allowance, etc.) and 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 "
4. A new Section 9(d)(iv) is added, reading as follows:
"(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".
5. A new Section 9(h) is added, reading as follows:
"(h) (A) Upon the occurrence of a Change of Control, (B) if in breach
of this Agreement, the Employer shall terminate the Employee's
employment other than pursuant
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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."
Except as set forth herein, the Employment Agreement remains in full
force and effect. Please confirm your agreement to the foregoing by executing
the enclosed copy of this letter where indicated.
Very truly yours,
BRIGHTPOINT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
Date: July 16, 1998
Agreed and Accepted By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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