1
EXHIBIT 10.4
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 J. Xxxx Xxxxxx (the "Employee").
WHEREAS, the Employer and the Employee entered into an
employment agreement (the "Employment Agreement") on December 1, 1996, which has
been amended from time to time since such date;
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
President and Chief Operating Officer and 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:
1. Term. Employer hereby agrees to employ Employee, and
Employee hereby agrees to serve Employer, for a five-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, this Agreement
shall be renewable automatically for successive one year periods (each such
period being referred to as a "Renewal Term"), unless, more than thirty days
prior to the expiration of the Initial Term or any Renewal Term, either the
Employee or the Company give written notice that employment will not be renewed
("Notice of Non-Renewal"), whereupon (i) if the Employee gives the Notice of
Non-Renewal, the term of the Employee'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 Employee's employment shall be for a
final five (5) year period (the "Final Renewal
2
Term"), commencing effective at the date of the Notice of Non-Renewal, unless
sooner terminated pursuant to Section 6 hereof.
2. Employee Duties.
A. During the term of this Agreement, the Employee shall
have the duties and responsibilities of President and Chief Operating Officer of
the Employer, reporting directly to the Chairman of the Board 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 or such other place
as the Board shall determine, 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.
3. Compensation.
A. During the term of this Agreement, the Employer shall
pay the Employee a salary (the "Salary") at a rate of $250,000 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.
4. Benefits.
A. During the term of this Agreement, the Employee shall
have the right to receive or participate in all benefits and plans which the
Company may from time to time institute during such period for its employees 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,
-2-
3
personal days off, vacation days and sick leave days in each calendar year as
are determined by the Company from time to time. Such vacation may be taken in
the Employee's discretion with the prior approval of the Employee, and at such
time or times as are not inconsistent with the reasonable business needs of the
Company.
5. 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 preapproved by the President of the Company. If
any such expenses are paid in the first instance by the Employee, the Employer
shall reimburse him therefor on presentation of appropriate receipts for any
such expenses.
6. 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 150 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 15 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. 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.
-3-
4
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, 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.
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 material obligations and agreements
contained in this Agreement, or (c) failure of the Employer to obtain the
assumption of the agreement to perform this Agreement by any successor as
contemplated in Section 9(f) 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
-4-
5
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 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 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
-5-
6
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.
7. 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.
8. 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.
9. 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
notice 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 to 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 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
-6-
7
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(a) 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 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, 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
-7-
8
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 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) $1,250,000 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 five (5), 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 ten (10) times: (i) the total compensation, (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 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 result of the termination of his employment under this Agreement,
including all legal fees and expenses incurred by him in contesting or disputing
any such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
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 on said amount) 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.
(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.
-8-
9
(e) 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.
(f) 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 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 hereunder 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.
(g) (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
the 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.
10. 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
-9-
10
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 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
business activities.
(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,
-10-
11
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) (i) 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;
(ii) 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
(iii) 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
-11-
12
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 any 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 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
-12-
13
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.
11. 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.
12. 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, XX 00000
Attention: Xxxxxx X. Xxxxxx
To the Employee:
J. Xxxx Xxxxxx
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
-13-
14
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:
(i) 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.
(ii) 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
-14-
15
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.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
/s/ J. Xxxx Xxxxxx
----------------------------------------
J. Xxxx Xxxxxx
