exv10w2






Exhibit 10.2




CONSULTING AGREEMENT




     THIS CONSULTING AGREEMENT (“Consulting Agreement”) is voluntarily entered into as of the
17th day of January, 2011, by and between Steven E. Fivel (“Fivel”) and Brightpoint,
Inc. (“Company”).



Preliminary Statement




     WHEREAS, Fivel is currently employed by the Company as its Executive Vice President, General
Counsel and Secretary pursuant to an Amended and Restated Employment Agreement entered into between
the parties, dated July 1, 1999, as amended (the “Employment Agreement”); and



     WHEREAS, Fivel provided notice to the Company that he wishes to voluntarily resign his
employment, effective February 28, 2011 (the “Separation Date”), in order to accept employment with
a business entity that is not in competition with the Company; and



     WHEREAS, on January 17, 2011, the parties entered into a Separation and General Release
Agreement (“Separation Agreement”) that provides that they will also enter into this Consulting
Agreement.



     NOW, THEREFORE, in consideration of the mutual understandings, covenants, and for other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby
voluntarily agree as follows:



Agreement




     1. Engagement of Fivel as Consultant.



     a. On the condition that Fivel timely enters into the Reaffirmation of Separation and General
Release Agreement attached to the Separation Agreement as Exhibit B, the Company agrees to
engage Fivel as a consultant and Fivel agrees to provide certain consulting services to the Company
as described in subsection b. below (“Consulting Services”) in exchange for the consideration set
forth herein. Fivel agrees to provide the Consulting Services during the period that commences on
March 1, 2011, and continues through April 30, 2013 (the “Consulting Term”). In the absence of a
written agreement extending the Consulting Term signed by the Company’s Chief Executive Officer and
Fivel, the Consulting Term shall automatically terminate on April 30, 2013, unless earlier
terminated pursuant to and in accordance with Section 2 of this Consulting Agreement.



     b. The Consulting Services shall be requested by the Company and shall be responded to by
Fivel as set forth in this subsection b. The Consulting Services shall consist of the following:
(i) such services as may be reasonably requested by the Company’s Chief Executive Officer (or his
designee), consistent with Fivel’s experience and responsibilities as Executive Vice President,
General Counsel and Secretary; (ii) the preparation of reports reasonably requested by the
Company’s Chief Executive Officer (or his designee) regarding the status of deliverables or other
matters assigned to Fivel during the Consulting Term; (iii)



 









 




assistance to the Company (and any of its affiliates and subsidiaries) with regard to business
and other matters within Fivel’s knowledge or areas of responsibility during his employment; (iv)
assistance to the Company (and any of its affiliates and subsidiaries) with regard to any legal or
other matters currently pending or any matters that have arisen or may arise in the future about
which Fivel has knowledge or that may, in some manner, relate to his employment with or
responsibilities to the Company; and (v) cooperation with the Company and its attorneys in
connection with any proceeding involving the Company (and any of its affiliates and subsidiaries)
before a court, administrative agency, governmental organization, or other entity. Company agrees
that it shall make any request for Consulting Services by contacting Fivel by telephone, text,
email, or any other electronic means. The parties acknowledge and agree that certain requests for
Consulting Services may include legal services to be provided by Fivel to the Company, and they
further agree that Fivel’s responses to such requests shall be protected by the attorney-client
privilege. Fivel agrees that he will respond to each request to perform Consulting Services within
forty eight (48) hours of the Company’s transmittal of such request, unless it is wholly
impractical or impossible for him to do so. When Fivel responds to the Company, he and the
Company’s Chief Executive Officer (or his designee) shall discuss the request and they shall reach
an agreement as to when such request will be fulfilled by Fivel. The parties agree that each of
them shall be reasonable in connection with any time limitation placed on Fivel and that such time
limitation will be determined by them based on the nature of the services requested. Fivel agrees
that he shall provide all Consulting Services in a timely (based on the parties’ agreement),
expeditious, and professional manner, to the best of his abilities. Due to the nature of Fivel’s
executive position with the Company during his employment, he understands that time may be of the
essence in connection with certain requests directed to him by the Company and he agrees that
failure to respond within the agreed time period may be deemed by the Company to be a breach of
this Agreement; provided, however, that prior to deeming the first such failure by
Fivel to be a breach, the Company shall provide Fivel with written notice of such alleged breach
and an opportunity for Fivel to cure such alleged breach within twenty four (24) hours or to
commence the cure of such alleged breach that is incapable of being cured within twenty four (24)
hours, and provided further that such alleged breach shall be cured by Fivel within a commercially
reasonable period of time thereafter. The parties agree that the foregoing cure opportunity shall
be provided only one (1) time to Fivel during the Consulting Term.




     2. Termination of Consulting Agreement. The parties agree that they may terminate
this Consulting Agreement and the Consulting Term by mutual written agreement. In addition, either
party may terminate this Agreement and the Consulting Term upon written notice to the other party
in the event such other party breaches any term or condition of this Consulting Agreement, except
as provided in Section 1.b. In the event of the Company’s termination of this Agreement due to
Fivel’s breach, the parties acknowledge that Fivel shall forfeit any and all rights to receive any
further unvested benefits under this Consulting Agreement, including, but not limited to, unvested
Restricted Stock Awards (“RSAs”) and Restricted Stock Units (“RSUs”) described in Section 5. The
parties agree that any such termination by the Company shall not affect Fivel’s rights to any RSAs
or RSUs that have vested pursuant to Section 5 during the Consulting Term prior to the termination
of the Consulting Agreement.



     3. Compensation and Expense Reimbursement. During the Consulting Term, the Company
shall pay Fivel a retainer of One Dollar ($1.00) per calendar year in exchange for the



 









 




Consulting Services. In addition, the Company shall reimburse Fivel for any out-of-pocket expenses
incurred by him in connection with the Consulting Services, on the condition that said expenses are
approved in advance and in writing by the Company’s Chief Executive Officer.




     4. Benefits. Fivel shall not be an employee of the Company during the Consulting Term
and, therefore, during such period he shall not be eligible for and shall not be entitled to
participate in any Company insurance program or plan, pension plan, deferred compensation plan,
stock option plan, or any other employee benefits provided by the Company to its employees except
as set forth in Section 5.



     5. Vesting of Restricted Stock Awards and Restricted Stock Units During Consulting
Term. The Company acknowledges that during Fivel’s employment with the Company, he was granted
45,000 unvested RSAs and 88,253 unvested RSUs (as of the Separation Date) in accordance with the
terms of the Company’s 2004 Long Term Incentive Plan, as amended (“ 2004 Plan”) and the applicable
award agreements entered into by and between Fivel and the Company. The Company agrees that these
previously-granted RSAs and RSUs shall continue to vest during the Consulting Term, in accordance
with the terms and conditions of the 2004 Plan, and as it may be amended in the regular course of
business from time to time and the applicable award agreements entered into by and between Fivel
and the Company.



     6. Right of Control. As an independent contractor, during the Consulting Term, Fivel
shall retain and exercise full control over the order, sequence, details, manner, and means by
which he achieves the results provided for under this Consulting Agreement; provided, that such
means are not inconsistent with or contrary to the requests provided to him by the Company.



     7. Office Space, Equipment, and Materials. During the Consulting Term, Fivel shall
provide his own office space, equipment, supplies, and materials in connection with the Consulting
Services he will provide to the Company.



     8. No Subcontracting. The services to be provided by Fivel, as described in this
Consulting Agreement, may not be subcontracted by him to any other individual or entity, and he may
not engage any subcontractor or agent to carry out any of the Consulting Services set forth in this
Consulting Agreement.



     9. No Conflicting Agreements. The parties represent and warrant that no verbal or
written agreements exist which would prevent them from entering into this Consulting Agreement.



     10. Independent Contractor During Consulting Term.



     a. Notwithstanding any other provision of this Consulting Agreement to the contrary, the
parties agree that during the Consulting Term, Fivel shall not be deemed to be employed by the
Company. During the Consulting Term, Fivel shall serve as an independent contractor to the
Company.



 









 





     b. No acts or assistance given to Fivel by the Company shall be construed to alter the
independent contractor relationship, and nothing contained in this Consulting Agreement shall be
construed to place Fivel and the Company in a relationship of partners, joint venturers, or
principal and agent.



     c. Fivel is not authorized to assume or undertake any obligation of any kind, express or
implied, on behalf of the Company; nor is he authorized on behalf of the Company to make any
promise, warranty or representation with respect to the Company.



     11. Taxes and Compliance with Laws. All amounts payable hereunder to Fivel during the
Consulting Term for Consulting Services shall be paid without reduction by the Company for any
local, state or federal income, employment or withholding taxes, it being the intention and
agreement of the parties that Fivel shall be responsible for the payment of all taxes (including,
but not limited to, income, self-employment, employment, and withholding taxes), fines, penalties,
and assessments imposed or related to his business activities. Fivel shall be solely responsible
for compliance with all state, local and federal laws, orders, codes and ordinances applicable to
the performance of Consulting Services under this Consulting Agreement.



     12. Cooperation and Indemnification.



     a. In the event that the Company or Fivel, or both, are involved in a dispute or litigation
involving third parties arising from the provision of Consulting Services under this Consulting
Agreement, or arising out of or relating to Fivel’s prior employment with the Company, the Company
and Fivel shall cooperate fully with respect to such dispute, unless their legal interests are in
conflict.



     b. Fivel agrees to fully indemnify, defend, and hold harmless the Company, and its directors,
officers, agents, employees, shareholders, insurers and attorneys from and against any and all
claims, damages and expenses, including reasonable costs and attorneys’ fees, arising from or
alleged to arise from: (i) any breach by Fivel of any material term set forth in this Consulting
Agreement; or (ii) any grossly negligent act or omission of Fivel, including but not limited to,
all acts and omissions of Fivel in connection with Consulting Services. Similarly, the Company
agrees to fully indemnify, defend, and hold harmless Fivel from and against any and all claims,
damages and expenses, including reasonable costs and attorneys’ fees, arising from or alleged to
arise from: (i) any breach by the Company of any material term set forth in this Consulting
Agreement; (ii) any grossly negligent act or omission of the Company, including but not limited to,
all acts and omissions of the Company in connection with its obligations to Fivel pursuant to this
Consulting Agreement; or (iii) the Consulting Services provided by Fivel, on the condition that
such services were provided in accordance with the terms of this Consulting Agreement in good faith
and in the absence of any gross negligence or omission of Fivel.



     13. Confidentiality. In consideration of the Company’s agreement to enter into this
Consulting Agreement, Fivel agrees that the fact of and terms and conditions of this Consulting
Agreement are to remain strictly confidential, and shall not be disclosed by him to any person



 









 




other than to his attorney, or as required by law or lawfully-issued subpoena. Furthermore,
Fivel also understands that in the course of the Consulting Term, he may be given access to
confidential information and trade secrets of the Company. Fivel agrees that he shall not, without
the Company’s prior written consent, either directly or indirectly, disclose to any third person
any confidential information or trade secrets of or about the Company. “Confidential information”,
as referred to herein, shall have the same meaning as set forth in Section X of the Employment
Agreement. This Consulting Agreement shall supplement any obligations that Fivel may have to the
Company pursuant to applicable state and federal trade secrets laws.




     14. Interpretation of Agreement. This Agreement shall be deemed to have been drafted
jointly by the parties, and in the event of an ambiguity in this Agreement, the same shall not be
construed against any party.



     15. Non-Waiver. The waiver by any party of compliance by any other party with any
provision of this Consulting Agreement shall not operate or be construed as a waiver of any other
provision of this Consulting Agreement (whether or not similar), or a continuing waiver or a waiver
of any subsequent breach by a party of a provision of this Consulting Agreement. Performance by
any party of any act not required of it under the terms and conditions of this Consulting Agreement
shall not constitute a waiver of the limitations on its obligations under this Consulting
Agreement, and no performance shall prohibit that party from asserting those limitations as to any
further or future performance of its obligations.



     16. Miscellaneous. This Agreement and the provisions hereof (in whole or in part)
shall not be assignable by the Company; provided, however, that this Agreement
shall inure to the benefit of and be binding upon any corporate or other successor of the Company
which shall acquire, directly or indirectly, by merger, consolidation, purchase or otherwise, all
or substantially all of the assets or stock of the Company, and in such case this Consulting
Agreement may be assigned by the Company without notice to or the consent of Fivel. However, this
Consulting Agreement is personal to Fivel and may not be assigned by him. In the event of any
dispute about this Consulting Agreement, the laws of the State of Indiana shall govern the
validity, performance, enforcement, and all other aspects of this Agreement. This Consulting
Agreement may be executed in counterparts, including facsimile, pdf, or photocopy counterparts,
each of which shall be deemed an original but all of which taken together shall constitute one and
the same Agreement. This Consulting Agreement may not be modified, altered, amended or waived in
any manner except by written instrument duly executed by the Company’s Chief Executive Officer and
by Fivel.



     17. Parties’ Representations. The parties have read this Consulting Agreement
carefully and each of them understands all of its terms. Each party’s decision to sign this
Consulting Agreement was voluntary and in agreeing to sign it neither party has relied on any
statements or explanations made by the other party, except as specifically set forth in this
Consulting Agreement.



 









 





     IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date(s) set forth
below.



	 	 	 	 	 
	 	 	 
	 	/s/ Steven E. Fivel
 	 
	 	Steven E. Fivel 	 
	 
	 	Date:
January 17, 2011
 	 
	 		 
	 
	 	Brightpoint, Inc.:

 	 
	 	By:  	/s/ Robert J. Laikin	 
	 	 	Printed: 	Robert J. Laikin
	 	 	Title:  	Chairman of the Board and Chief Executive Officer	 
	 
	 	Date:  	January 17, 2011