Amendment to Employment Agreement
2nd Amendment to Employment Agreement
3rd Amendment to Employment Agreement
4th Amendment to Employment Agreement
5th Amendment to Employment Agreement
Supplemental Executive Retirement Benefit
 
 
 
 
 
 
 
 
 
EXHIBIT 10.3
 
                   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 Robert J. Laikin (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
Chairman of the Board and Chief Executive 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
 
 
 
 
 
<PAGE>   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 Chairman of the Board and Chief
Executive Officer of the Employer, reporting directly to 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 $350,000 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-
<PAGE>   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-
<PAGE>   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-
<PAGE>   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-
<PAGE>   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-
 
<PAGE>   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-
 
<PAGE>   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-
 
<PAGE>   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-
 
 
<PAGE>   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-
 
<PAGE>   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-
 
<PAGE>   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-
 
<PAGE>   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.
                       6402 Corporate Drive
                       Indianapolis, IN  46278
                       Attention:  Robert J. Laikin
 
                  To the Employee:
                       J. Mark Howell
                       1013 Summer Hill
                       Carmel, IN 46032
 
 
                                      -13-
 
 
<PAGE>   14
 
 
             With, in either case, a copy in the same manner to:
                  Tenzer Greenblatt LLP
                  405 Lexington Avenue
                  New York, New York 10174
 
                  (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 Marion 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-
 
<PAGE>   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/ Robert J. Laikin
                                          -------------------------------------
                                          Name:  Robert J. Laikin
                                          Title: Chief Executive Officer
 
 
                                       /s/ J. Mark Howell
                                       ----------------------------------------
                                       J. Mark Howell

 

 

 

                                                                   EXHIBIT 10.33

 

             AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT

 

 

      Amendment dated as of January 1, 2001 to Amended and Restated Employment

Agreement dated as of July 1, 1999 between BRIGHTPOINT, INC., a Delaware

corporation (the "Employer" or the "Company"), and Robert J. Laikin (the

"Employee").

 

      WHEREAS, the Employer and the Employee have entered into an amended and

restated employment agreement dated as of July 1, 1999 (the "Employment

Agreement");

 

      WHEREAS, Employer and Employee wish to amend certain sections of the

Employment Agreement as provided below to reflect the increased base salary of

the Employee as recently approved by the Company;

 

      NOW, THEREFORE, the Employer and Employee hereby amend sections 3.A and

9(d)(ii)(A) of the Employment Agreement to provide as follows:

 

      3.    Compensation.

 

                  "A. 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 installments bi-weekly, 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."

 

      9.    Compensation Upon Termination or During Disability.

 

            (d)  . . .

 

                  "(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 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) $2,250,000 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"

 

Except as provided above all other provisions of the Employment Agreement shall

remain unchanged and in full force and effect.

 

 

                                       1

<PAGE>   2

            IN WITNESS WHEREOF, the parties hereto have executed and delivered

this Amendment as of the date first above written.

 

 

                                    BRIGHTPOINT, INC.

 

 

                                    By: /s/ J. Mark Howell

                                       ---------------------------------------

                                       Name:  J. Mark Howell

                                       Title: President and COO

 

 

                                    By: /s/ Robert J. Laikin

                                       ---------------------------------------

                                        Name: Robert J. Laikin

 

 

 

                                                                   EXHIBIT 10.31

 

                     AMENDMENT NO 2 TO AMENDED AND RESTATED

                              EMPLOYMENT AGREEMENT

 

      Amendment No. 2 dated as of January 1, 2003 to Amended and Restated

Employment Agreement dated as of July l, 1999 between BRIGHTPOINT, INC., a

Delaware corporation (the "Employer" or the "Company"), and Robert J. Laikin

(the "Employee").

 

      WHEREAS, the Employer and the Employee have entered into an amended and

restated employment agreement dated as of July 1, 1999, as amended by that

certain amendment dated as of January 1, 2001 (the "Employment Agreement");

 

      WHEREAS, Employer and Employee wish to amend the section of the Employment

Agreement as provided below to reflect the increased base salary of the Employee

as recently approved by the Company;

 

      NOW, THEREFORE, the Employer and Employee hereby amend section 3.A of the

Employment Agreement to provide as follows:

 

      3. Compensation.

 

            "A. During the term of this Agreement, the Employer shall pay the

Employee a salary (the "Salary") at a rate of $600,000 per annum in respect of

each Employment Year, payable in equal installments bi-weekly, 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."

 

Except as provided above all other provisions of the Employment Agreement shall

remain unchanged and in full force and effect.

 

      IN WITNESS WHEREOF, the parties hereto have executed and delivered this

Amendment as of the date first above written.

 

                            BRIGHTPOINT, INC.

 

 

                            By: /s/ Steven E. Fivel

                                ------------------------------------------------

                                Name: Steven E. Fivel

                                Title: Executive Vice President and General

                                       Counsel

 

 

                            By: /s/ Robert J. Laikin

                                -----------------------------------------------

                                Name:  Robert J. Laikin

 

 

 

                                                                   Exhibit 10.42

 

                     AMENDMENT NO 3 TO AMENDED AND RESTATED

                              EMPLOYMENT AGREEMENT

 

         Amendment No. 3 dated as of January 1, 2004 to Amended and Restated

Employment Agreement dated as of July l, 1999 between Brightpoint, Inc., a

Delaware corporation (the "Employer" or the "Company"), and Robert J. Laikin

(the "Employee").

 

         WHEREAS, the Employer and the Employee have entered into an amended and

restated employment agreement dated as of July 1, 1999, as amended by those

certain amendments dated as of January 1, 2001 and January 1, 2003 (the

"Employment Agreement");

 

         WHEREAS, the Employer and Employee wish to amend the section of the

Employment Agreement as provided below to reflect the increased base salary of

the Employee as recently approved by the Compensation & Human Resources

Committee of the Board of Directors of the Company and the Board of Directors of

the Company;

 

         NOW, THEREFORE, the Employer and Employee hereby amend section 3.A of

the Employment Agreement to provide as follows:

 

         3.       Compensation.

 

                           "A.      During the term of this Agreement, the

Employer shall pay the Employee a salary (the "Salary") at a rate of $670,000

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."

 

Except as provided above all other provisions of the Employment Agreement shall

remain unchanged and in full force and effect.

 

                  IN WITNESS WHEREOF, the parties hereto have executed and

delivered this Amendment as of the date first above written.

 

                                       BRIGHTPOINT, INC.

 

                                   By: /s/ Steven E. Fivel

                                       ----------------------------------

                                       Name:  Steven E. Fivel

                                       Title: Executive Vice President, General

                                              Counsel and Secretary

 

                                   By: /s/ Robert J. Laikin

                                       -----------------------------------

                                       Name: Robert J. Laikin

 

 

 

                                                                    EXHIBIT 10.1

 

                     AMENDMENT NO. 4 TO AMENDED AND RESTATED

                              EMPLOYMENT AGREEMENT

 

      THIS AMENDMENT NO. 4 (this "Amendment") TO THE AMENDED AND RESTATED

EMPLOYMENT AGREEMENT dated as of July 1, 1999, between Brightpoint, Inc., an

Indiana corporation (the "Employer" or the "Company"), and Robert J. Laikin (the

"Employee") is entered into as of April 7, 2005.

 

      WHEREAS, the Employer and the Employee have entered into an amended and

restated employment agreement dated as of July 1, 1999, as amended by those

certain amendments dated as of January 1, 2001, January 1, 2003 and January 1,

2004 (the "Employment Agreement");

 

      WHEREAS, the Employer and the Employee wish to amend certain sections of

the Employment Agreement as provided below;

 

      NOW, THEREFORE, in consideration of the premises and mutual benefits and

covenants contained herein, the parties hereto agree as follows:

 

      1.    Amendments.

 

            (a) Section 3.A. of the Employment Agreement shall be amended and

restated in its entirety as follows:

 

                  A. During the term of this Agreement, the Employer shall pay

            the Employee a salary (the "Salary") at a rate of $705,000 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) The first sentence of the paragraph immediately following the

initial clause of Subsection 9(d)(iii) shall be amended and restated in its

entirety as follows:

 

                  In the event that the aggregate of all payments or benefits

            made or provided to the Employee under this Agreement and under all

            other plans, programs and arrangements of the Employer (the

            "Severance Total") is determined to constitute a "parachute

            payment," as such term is defined in Section 280G(b)(2) of the

            Internal Revenue Code of 1986, as amended (the "Code"), then 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.

 

                                      -1-

 

<PAGE>

 

            (c) Section 9(g) of the Employment Agreement shall be amended and

restated in its entirety as follows:

 

                  (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 or

            restricted stock award agreement relating to a regular, annual stock

            option or restricted stock award to the Employee, (x) all

            then-unvested stock options pursuant to such awards shall

            immediately vest and become exercisable and shall remain exercisable

            for 180 days thereafter (or the expiration of the term of the stock

            option, if shorter) and (y) all then-unvested shares of restricted

            stock pursuant to such awards shall immediately vest.

 

            (d) A new Section 9(h) shall be added to the Employment Agreement as

follows:

 

                  (h) Severance Cap.

 

                  (A) Notwithstanding Subsection 9(d)(ii) and Section 9(g)

            above, the total value to be received by the Employee due to the

            Severance Pay pursuant to Subsection 9(d)(ii) and the accelerated

            vesting pursuant to Section 9(g) (the "Accelerated Vesting") (such

            total value referred to herein as the "Total Severance Value") may

            not exceed $9 million (the "Severance Cap"). For the avoidance of

            doubt, any accelerated vesting of the restricted stock award granted

            to the Employee on April 7, 2005 and any Increase provided to the

            Employee pursuant to Section 9(d) hereof shall not count toward or

            be subject to the Severance Cap.

 

                  (B) For purposes of calculating the value of the Accelerated

            Vesting, (i) the value of the accelerated vesting of an option on a

            share of stock shall equal the result of the Fair Market Value (as

            defined in the Brightpoint, Inc. 2004 Long-Term Incentive Plan (the

            "Plan")) for such share of stock underlying the option on the date

            of the accelerated vesting less the strike price for such option (if

            such result is a negative number, the result shall be deemed to be

            zero) and (ii) the value of the accelerated vesting of a share of

            restricted stock shall equal the Fair Market Value for such share of

            stock on the date the vesting accelerates. In addition, if the

            Employee receives Accelerated Vesting upon a Change of

 

                                      -2-

 

<PAGE>

 

            Control, then, for purposes of calculating the Total Severance

            Value, any Accelerated Vesting and Severance Pay the Employee

            receives within the 12-month period following the Accelerated

            Vesting received upon the Change of Control shall each be added to

            calculate the Total Severance Value (with the value of each

            Accelerated Vesting and the Severance Pay to be at face value

            without adjustment for any time value of money). If elected by the

            Employee, the determination of whether the Total Severance Value

            exceeds the Severance Cap shall be made by a nationally recognized

            United States public accounting firm (the "Accounting Firm") jointly

            selected by the Employer and the Employee and paid by the Employer,

            with such determination following the valuation guidance provided in

            this Section 9(h). If the Employee and the Employer cannot agree on

            the firm to serve as the Accounting Firm, then the Employee and the

            Employer shall each select one accounting firm and those two firms

            shall jointly select the Accounting Firm. For the avoidance of

            doubt, any accelerated vesting of the restricted stock award granted

            to the Employee on April 7, 2005 shall not count toward or be

            subject to the Severance Cap.

 

                  (C) If a reduction in the Total Severance Value is required,

            then the Employee shall choose to either reduce the Severance Pay or

            to limit Accelerated Vesting, to the extend needed; provided,

            however, that if the Total Severance Value is the sum of Accelerated

            Vesting received upon a Change of Control and subsequent Accelerated

            Vesting and/or Severance Pay, the reduction chosen by the Employee

            may not affect the Accelerated Vesting received upon the Change of

            Control.

 

      2.    Miscellaneous.

 

            (a) This Amendment is a legal and binding obligation of the parties,

enforceable in accordance with its terms.

 

            (b) This Amendment shall be construed in accordance with the

internal laws and not the choice of law provisions of the State of Indiana.

 

            (c) Except as specifically amended hereby, the Employment Agreement

shall remain in full force and effect. In the event the terms of the Employment

Agreement conflict with this Amendment, the terms of this Amendment shall

control.

 

            (d) Except as otherwise provided herein, this Amendment contains the

entire understanding between the parties, and there are no other agreements or

understandings between the parties with respect to the subject matter hereof. No

alteration or modification hereof shall be valid except by a subsequent written

instrument executed by the parties hereto.

 

                                      -3-

 

<PAGE>

 

            (e) This Amendment may be executed in any number of counterparts,

and each such counterpart shall be deemed to be an original instrument, but all

such counterparts together shall constitute only one agreement. Any facsimile of

this Amendment shall be considered an original document.

 

      IN WITNESS WHEREOF, each of the parties hereto has duly executed this

Amendment No. 4 to Amended and Restated Employment Agreement as of the date

first set forth above.

 

                                              BRIGHTPOINT, INC.

 

                                              By: /s/ Jerre L. Stead

                                                  ----------------------------

                                              Name: Jerre L. Stead

                                              Title: Lead Independent Director

 

                                                  /s/ Robert J. Laikin

                                              --------------------------------

                                              Robert J. Laikin

 

 

 

 

 

 

 

 

Exhibit 10.10.5

AMENDMENT NO. 5 TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT

     THIS AMENDMENT NO. 5 (this “Amendment”) TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of July 1, 1999, between Brightpoint, Inc., an Indiana corporation (the “Employer” or the “Company”), and Robert J. Laikin (the “Employee”) is entered into as of December 30, 2008.

     WHEREAS, the Employer and the Employee have entered into an amended and restated employment agreement, dated as of July 1, 1999, as amended by those certain amendments dated as of January 1, 2001, January 1, 2003, January 1, 2004 and April 7, 2005 (the “Employment Agreement”); and

     WHEREAS, the Employer and Employee wish to amend certain sections of the Employment Agreement as provided below.

     NOW, THEREFORE, in consideration of the premises and mutual benefits and covenants contained herein, the parties hereto agree as follows:

     1. Unless the context indicates otherwise, capitalized terms used and not defined in this Amendment shall have the respective meanings assigned thereto by the Employment Agreement.

     2. This Amendment is effective as of the date first set forth above, except as specifically provided otherwise.

     3. A new Section 13 is added to the Employment Agreement as follows:

          “13. Compliance with Code Section 409A.

     (a) It is intended that any amounts payable under this Employment Agreement and the Employer’s and the Employee’s exercise of authority or discretion hereunder shall comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), including the Treasury regulations and other published guidance relating thereto, so as not to subject the Employee to the payment of any interest or additional tax imposed under Code Section 409A. To the extent any amount payable to the Employee from the Employer, per this Employment Agreement or otherwise, would trigger the additional tax imposed by Code Section 409A, the payment arrangements shall be modified to avoid such additional tax. Notwithstanding any provision in the Employment Agreement to the contrary, as needed to comply with Code Section 409A, payments due under this Agreement shall be subject to a six (6) month delay such that amounts otherwise payable during the six (6) month period following the Employee’s separation from service shall be accumulated and paid in a lump-sum catch-up payment as of the first day of the seventh-month following separation from service (a “Delayed Payment).

     (b) The Employer shall pay in full any Delayed Payment in accordance with Section 13(a) and shall not deduct from or setoff against any Delayed Payment (i) any compensation earned by the Employee as the result of employment by another employer

 


 

or business or profits earned by the Employee from any other source at any time before and after the Date of Termination, or (ii) any other amounts actually owed or claimed by the Employer to be owed by the Employee to the Employer in connection with any claim the Employer has or makes against the Employee.”

     4. Miscellaneous.

          (a) This Amendment is a legal and binding obligation of the parties, enforceable in accordance with its terms.

          (b) This Amendment shall be construed in accordance with the internal laws and not the choice of law provisions of the State of Indiana.

          (c) Except as specifically amended hereby, the Employment Agreement shall remain in full force and effect. In the event the terms of the Employment Agreement conflict with this Amendment, the terms of this Amendment shall control.

          (d) Except as otherwise provided herein, this Amendment contains the entire understanding between the parties, and there are no other agreements or understandings between the parties with respect to the subject matter hereof. No alteration or modification hereof shall be valid except by a subsequent written instrument executed by the parties hereto.

          (e) This Amendment may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute only one agreement. Any facsimile of this Amendment shall be considered an original document.

2


 

     IN WITNESS WHEREOF, each of the parties hereto has duly executed this Amendment No. 5 to Amended and Restated Employment Agreement as of the date first set forth above.

 

 

 

 

 

 

BRIGHTPOINT, INC.
 

 

 

By:  

/s/ Steven E. Fivel  

 

 

 

Name:  

Steven E. Fivel 

 

 

 

Title:  

EVP, G.C., Secretary

 

 

 

EMPLOYEE
 

 

 

/s/ Robert J. Laikin  

 

 

Robert J. Laikin 

 

 

 

12/30/08

 

 

3

 

 

EX-10.1 2 c65940exv10w1.htm EX-10.1

Exhibit 10.1

BRIGHTPOINT, INC.

AMENDED AND RESTATED
AGREEMENT FOR
SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFIT

     THIS AMENDED AND RESTATED AGREEMENT is entered into as of the 16th day of August 2011 by and between Robert J. Laikin (the “Executive”) and Brightpoint, Inc., an Indiana corporation (the “Company”). This Agreement fully supercedes the prior Amended and Restated Agreement for Supplemental Executive Retirement Benefit entered into by the parties on January 19, 2006, effective on April 7, 2005.

     1. Eligibility for Supplemental Retirement Benefit. In addition to any amounts that may be payable to the Executive pursuant to any other compensation or benefit plan or program maintained by the Company to which the Executive may be entitled, subject to Section 5 below, the Company shall pay to the Executive beginning upon the later of his Date of Termination (as such term is defined in that certain Amended and Restated Employment Agreement dated as of July 1, 1999 between the Executive and the Company, as it may be amended from time to time (the “Employment Agreement”)) or his attainment of age 50 (the applicable date the “Payment Start Date”), an annual amount (the “Supplemental Retirement Benefit”) calculated and paid pursuant to the provisions of this Agreement including, but not limited to, the payment period described in Section 3 below.

     2. Calculation of the Supplemental Retirement Benefit.

          (a) Formula. The Supplemental Retirement Benefit shall equal the lesser of:

          (i) $496,000, and

          (ii) the product of (A) the Gross Benefit as defined in subsection 2(b) below, multiplied by (B) the Early Commencement Percent defined in subsection 2(e) below.

          (b) Gross Benefit. The Gross Benefit shall equal an annual payment equal to the product of the Accrual Percentage (as calculated in accordance with subsection 2(c) below) multiplied by the Final Average Earnings (as defined in subsection 2(d) below).

          (c) Accrual Percentage. The Accrual Percentage shall equal the lesser of (A) the sum of (i) through (v) below, and (B) 50%:

          (i) 10%; plus

          (ii) 2%, if the Executive is employed by the Company on June 30, 2005; plus

          (iii) 4% for each full Year (as defined below) the Executive is employed by the Company from July 1, 2005 through June 30, 2010; plus

 


 

          (iv) 2% for each full Year the Executive is employed by the Company from July 1, 2010 through June 30, 2014; plus

          (v) 1% for each full Year the Executive is employed by the Company thereafter.

For purposes of this Agreement, “Year” means the twelve-month period commencing each July 1 and ending each June 30.

          (d) Final Average Earnings. The Executive’s Final Average Earnings for purposes of subsection 2(b) above shall equal the quotient of (i) the sum of (A) the Executive’s Annual Base Salary (as defined below) for the 5 Years prior to the Executive’s Date of Termination plus (B) the Executive’s target cash bonus with respect to the calendar year ending in each such Year (notwithstanding when such bonus is paid or payable and specifically excluding any equity-based awards), divided by (ii) 5. “Annual Base Salary” shall mean the base rate of cash compensation payable by the Company to or for the benefit of the Executive for services rendered, including base pay the Executive could have received in cash in lieu of deferrals pursuant to any non-qualified deferred compensation plan or pursuant to any pre-tax contribution made on the Executive’s behalf to any qualified plan maintained by the Company pursuant to a cash or deferred arrangement (as defined under Section 401(k) of the Internal Revenue Code of 1986, as amended (the “Code”)), under any cafeteria plan (as defined under Section 125 of the Code) or under a qualified transportation fringe benefit (as defined under Section 132(f) of the Code).

          (e) Early Commencement Percent. The Early Commencement Percent shall equal the result of:

          (i) 100%, less

          (ii) the product of .25% for each full calendar month the Payment Start Date precedes the calendar month in which occurs the Executive’s 62nd birthday (designed to be a 3% discount for each full twelve-month period the Payment Start Date precedes the Executive’s 62nd birthday, with monthly pro-ration for any period of less than twelve months).

     3. Form of Payment of Supplemental Retirement Benefit. The Supplemental Retirement Benefit payable hereunder shall be paid for a ten-year period in an annual amount determined pursuant to Section 2 above. Payment shall commence effective on the Payment Start Date, with payments to be made monthly in arrears as of the first of each month. To the extent required for compliance with the terms of Code Section 409A (including the Treasury regulations and other published guidance relating thereto), payments shall not be made during a period immediately following the Date of Termination (the “Delay Period”) and, on the first business day immediately following the Delay Period (the “Catch-Up Payment Date”) the Executive shall receive a lump-sum payment equal to the total of the payments that would have otherwise been made during the Delay Period plus simple interest on each such payment for the period from the date such payment would otherwise have been made to the Catch-Up Payment Date, with such interest at a rate equal to 1% over the prime rate as published in The Wall Street

 


 

Journal (U.S. Edition) as of the Date of Termination or, if the Wall Street Journal is not published on such date, the next following date that The Wall Street Journal is published.

     4. Survivor Benefit. If the Executive dies prior to his Payment Start Date, the Executive’s Supplemental Retirement Benefit shall be calculated as of the date of the Executive’s death (with such date the “Payment Start Date” for purposes of Section 2(e)) and paid to his Spouse (as defined below) commencing no later than sixty (60) days after the Executive’s death with payments to be made as set forth in Section 3 for the ten year period. If the Executive dies while receiving the Supplemental Retirement Benefit, the Executive’s unpaid Supplemental Retirement Benefit shall be paid to his Spouse commencing no later than sixty (60) days after the Executive’s death with payments to be made as set forth in Section 3 for the remainder of the ten-year period. “Spouse” shall mean the Executive’s legal spouse at the time of the Executive’s death and shall not mean a former spouse. If the Executive does not have a Spouse at the time of his death, then no Supplemental Retirement Benefit shall be paid for any days after the Executive’s death. If the Spouse dies while receiving the Supplemental Retirement Benefit, then no Supplemental Retirement Benefit shall be payable for any days after the date of the Spouse’s death.

     5. Termination for Cause. If the Executive’s employment with the Company is terminated by the Company for Cause (as such term is defined in the Employment Agreement), then the Payment Start Date shall be the Executive’s 62nd birthday.

     6. Withholding. All payments provided for in this Agreement shall be subject to applicable withholding and other deductions as shall be required of the Company under any applicable federal, state or local law.

     7. Unsecured General Creditor. Nothing contained in this Agreement and no action taken pursuant to its provisions by the Company or any person, shall create, nor be construed to create, a trust of any kind or a fiduciary relationship between the Company and the Executive or any other person. The payments to the Executive hereunder shall be made from assets which shall continue, for all purposes, to be a part of the general, unrestricted assets of the Company. No person shall have nor acquire any interest in any such assets by virtue of the provisions of this Agreement. The Company’s obligation hereunder shall be an unfunded and unsecured promise to pay money in the future. To the extent that the Executive acquires a right to receive payments from the Company under the provisions hereof, such right shall be no greater than the right of any unsecured general creditor of the Company.

     8. General Provisions.

          (a) Enforceability. To the extent not preempted by Federal law, the validity, interpretation, construction and enforceability of this Agreement shall be governed by the internal laws of the State of Indiana, without giving effect to any choice of law or conflict of law provision or rule. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 


 

          (b) Modification, Amendment, Waiver. No modification or amendment of any provision of this Agreement shall be effective unless approved in writing by both parties. Either party’s failure to insist upon strict compliance with any provision hereof shall not be deemed to be a waiver of such provision or any other provision hereof.

          (c) Headings. The heading and section or subsection designations of this Agreement are included solely for convenience of reference and shall in no event be construed to define or limit any provisions of this Agreement.

          (d) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same document. Any facsimile of this Agreement shall be considered an original document.

          (e) Successors. The Company 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 Company, by agreement in form and substance satisfactory to the Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no succession had taken place.

          (f) Code Section 409A.

          (i) It is intended that this Agreement will comply with Code Section 409A, and any regulations and guidelines issued thereunder, to the extent this Agreement is subject thereto, and this Agreement shall be interpreted on a basis consistent with such intent.

          (ii) As referenced in Section 3 and notwithstanding any provision to the contrary in this Agreement, if the Executive is deemed on the date of his “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i)), then with regard to any payment that is required to be delayed pursuant to Code Section 409A(a)(2)(B) (the “Delayed Payments”), such payment shall not be made prior to the earlier of (A) the expiration of the six (6) month period measured from the date of his “separation from service” and (B) the date of his death. Any payments due under this Agreement other than the Delayed Payments shall be paid in accordance with the normal payment dates specified herein. In no case will the delay of any of the Delayed Payments by the Company constitute a breach of the Company’s obligations under this Agreement.

          (iii) For all purposes under this Agreement, reference to the Executive’s “termination of employment” or “Date of Termination” (and corollary terms) shall be construed to refer to the Executive’s “separation from service” (as determined under Treas. Reg. Section 1.409A-1(h), as uniformly applied by the Company) with the Company.

          (iv) For purposes of Code Section 409A, the Executive’s right to receive installment payments pursuant to this Agreement shall be treated as a right to

 


 

receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company. Any other provision of this Agreement to the contrary notwithstanding, in no event shall any payment or benefit under this Agreement that constitutes nonqualified deferred compensation for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.

     IN WITNESS WHEREOF, the parties have signed this Agreement as of the day and year first written above.

 

 

 

 

 

 

BRIGHTPOINT, INC.
 

 

 

By:  

/s/ Jerre L. Stead  

 

 

Name:  Jerre L. Stead 

 

 

Its: Lead Independent Director 

 

 

 

 

 

 

/s/ Robert J. Laikin  

 

 

     Robert J. Laikin