AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT dated as
of May 6, 2009 between BRIGHTPOINT, INC., an Indiana
corporation (the “Employer” or the
“Company”), and ANTHONY W. BOOR (the
“Employee”).
WHEREAS, the
Employer desires to employ the Employee as its Executive Vice
President, Chief Financial Officer and Treasurer 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:
Employer hereby
agrees to employ Employee, and Employee hereby agrees to serve
Employer for a four-year period commencing effective as of the date
of this Agreement (the “Effective Date” and any year
commencing on the Effective Date or any anniversary of the
Effective Date being hereinafter referred to as an
“Employment Year”).
2.1 During the
term of this Agreement, the Employee shall have the title of
Executive Vice President, Chief Financial Officer and Treasurer and
shall have the duties and responsibilities attached hereto as
Exhibit A, reporting directly to the Chief Executive Officer
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.
2.2 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.
Notwithstanding the foregoing, nothing in this Agreement shall
preclude the Employee from devoting reasonable periods of time
required for serving as a director of any organization or
corporation involving no conflict of interest with the interests of
the Company and with the written consent of the Company, which
consent shall not be unreasonably withheld, provided that
such activities do not materially interfere with the due
performance of his duties and responsibilities under this Agreement
as determined by the Chief Executive Officer of the
Company.
3.1 During the
term of this Agreement, the Employer shall pay the Employee a
salary (the “Salary”) at a rate of $450,000 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 or the Board’s Compensation and Human
Resources Committee (“Compensation
Committee”).
3.2 In addition to
the foregoing, as of the date hereof, the Company has granted to
the Employee a Supplemental Executive Retirement Benefit, which is
evidenced by an agreement in substantially the form of
Exhibit B hereof.
3.3 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 or the Compensation Committee during or
in respect of his employment hereunder.
4.1 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.
4.2 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.
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 incurred in accordance
with the Company’s policies. 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
90
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consecutive
calendar days, 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.
(a) For
purposes of this Agreement, “Cause” shall mean
(i) an act or acts of dishonesty, fraud or breach of trust by
Employee relating to his duties or employment with the Company or
breach of fiduciary duty against the Company or any of its
affiliates; (ii) Employee’s unlawful conduct, willful
misconduct or gross negligence that is injurious to the Company,
either financially or in reputation; (iii) Employee engaging
in conduct that is considered contrary to community standards of
justice, honesty or good morals which is injurious to the Company,
either financially or in reputation; (iv) the Employee’s
conviction of, or plea of guilty or nolo contendere to, a felony;
(v) failure of Employee to perform his duties and
responsibilities hereunder or to satisfy his obligations as an
officer or Employee of the Company, which failure has not begun to
be cured by Employee within seven (7) days after written
notice thereof to Employee from the Company (and which is not cured
within 30 days after written notice thereof to Employee from
the Company); (vi) material breach of any terms and conditions of
this Agreement by Employee, which breach has not begun to be cured
by Employee within seven (7) days after written notice thereof
to Employee from the Company (and which is not cured within
30 days after written notice thereof to Employee from the
Company); or (vii) Employee’s unlawful use (including
being under the influence) or possession of illegal drugs on the
Company’s premises or while performing Employee’s
duties and responsibilities under this Agreement.
(b) For
purposes of this Agreement, a “Change of Control” shall
be deemed to occur, unless previously consented to in writing by
the Employee, upon (i) 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; (ii) 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 (A) 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
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“Combination”) and (B)
(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 6.3(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; (iii) 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; (iv) 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 (ii)(B)
above are present; or (v) the complete liquidation or
dissolution of the Employer.
6.4 Termination
by the Employee for Good Reason Upon a Change of Control . The
Employee may terminate his employment under this Agreement for Good
Reason (as hereinafter defined) at any time within twelve months
after a Change of Control.
(a) For
purposes of this Agreement, “Good Reason” shall mean
(i) any material reduction or limitation of the powers of the
Employee in any respect not contemplated by, this Agreement, (ii)
failure of the Employer to obtain the assumption of the agreement
to perform this Agreement by any successor as contemplated in
Section 9.9 of this Agreement, (iii) any material change
in the geographic location in which the Employee is required to
work or (iv) any other action or inaction that constitutes a
material breach by the Employer under this Agreement. With respect
to the matters set forth in 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.
6.5 Termination
without Cause . The Employer may terminate the Employee’s
employment under this Agreement without Cause.
6.6 Termination
without Good Reason . The Employee may terminate his employment
under this Agreement without Good Reason.
7. Notice of
Termination .
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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;
provided , however , that the failure to indicate any
specific termination provision in such notice shall not constitute
a waiver of such provision.
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 .
9.1 If the
Employee’s employment shall be terminated by reason of his
death, the Employer shall promptly 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 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.
9.2 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 and the Employer shall 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.
9.3 If the
Employee’s employment shall be terminated by the Employer for
Cause or if his employment shall be terminated by the Employee
without Good Reason, 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,
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