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EMPLOYMENT AGREEMENT
This Agreement made this 25th day of September, 1997 by and between XXX
XXXXXX, having offices at 0000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
("Vallee") and AVNET, INC., a New York corporation with offices at 00 Xxxxxx
Xxxx Xxxx, Xxxxx Xxxx, Xxx Xxxx 00000 (the "Company").
1. Employment
The Company hereby employs Vallee and Vallee hereby accepts employment upon the
terms and conditions hereinafter set forth.
2. Term
This Agreement shall be effective beginning on June 27, 1998 (the "Effective
Date") and, except for the provisions which are intended to survive for other
periods of time specified herein, shall terminate on June 29, 2001 (the
"Termination Date").
3. Duties
From the Effective Date to and including the Termination Date, Vallee is hereby
engaged to perform the duties of Chief Executive Officer of the Company and
beginning not later than November 30, 1998 Vallee shall be elected to the
office of, and shall perform the duties of, Chairman of the Board and Chief
Executive Officer of the Company. Vallee shall serve without additional
compensation as a Director of the Company and as an officer or director of
other subsidiaries or divisions if elected or appointed to such offices. In the
event that during the term hereof Vallee is relieved of his duties as Chairman
of the Board and Chief Executive Officer of the Company, he shall not be
required to perform any other duties in lieu thereof but shall in any event
(unless this Agreement is terminated pursuant to Paragraph 6 hereinbelow) be
entitled to receive the compensation provided for herein
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during any remaining portion of the term hereof; provided, however, that so
long as Vallee is receiving such compensation he shall continue to be bound by
the other terms and conditions of this Agreement including, in particular, the
provisions of Paragraph 7 hereinbelow.
4. Definitions
The words and phrases set forth below shall have the meanings as indicated:
(a) Year -- the fiscal year of the Company, from the day next following the
last Friday in June through the last Friday in June of the following
calendar year.
(b) Annual Earnings Per Share -- the net profits of the Company for each
Year during the term hereof expressed on a fully diluted per share basis
(based on the weighted average number of shares of the Company's Common
Stock outstanding or equivalent thereto or otherwise treated as
outstanding during such Year retroactively adjusted to eliminate the
effect of any of the following transactions declared or effected on or
after June 27, 1998; any stock dividends on, or stock split-ups or
reverse splits of, or recapitalizations, reclassifications or other
similar transactions affecting the Company's Common Stock), after the
provision for income taxes but prior to inclusion of any extraordinary
items of profit or loss and also prior to computation of any incentive
compensation due under Paragraph 5(b) and 5(d) hereinbelow. Annual
Earnings Per Share shall be computed on a consolidated basis for the
Company and its subsidiaries in accordance with generally accepted
accounting principles on the basis of the net income and income per
share certified by the Company and Independent Accountants as reported
in the Company's Annual Report on Form 10-K (or any successor annual
report form) for the relevant Year filed with the Securities and
Exchange Commission. For the sake of clarification, the term
"extraordinary items of profit or loss"
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shall include unusual and/or infrequent items, which items are either
(a) material in the sense of being equal to at least 5% of the Company's
pre-tax income for the relevant Year or (b) required to be disclosed
separately or by footnote in the Company's financial statements for the
relevant Year.
(c) Return on Capital ("ROC") -- a percentage calculated by dividing the
Company's net after-tax income for a Year (prior to the inclusion of any
extraordinary items of profit or loss and also prior to computation of
any incentive compensation due under Paragraphs 5(b) or 5(d) hereunder),
adjusted to exclude the after-tax effect of interest on debt, by the
average investment during the Year; with the average investment being
the sum of the investment at the end of the prior Year plus the
investments at the end of each fiscal month of the Year divided by 13;
and with investment being the sum of shareholders' equity and long-term
and short-term debt.
5. Compensation
(a) For all services to be rendered by Vallee and for all covenants
undertaken by him, the Company shall pay and Vallee shall accept annual
base compensations per Year during the term hereof of Seven Hundred
Fifty Thousand Dollars ($750,000.00) payable in equal bi-weekly
installments (or in other installment frequencies as may be used from
time to time by the Company to pay its other employees).
(b) In addition to annual base compensation, subject to and contingent upon
approval by the Shareholders of the Corporation at the Annual Meeting of
Shareholders to be held on November 19, 1997 (or at any adjournments
thereof), the Company shall pay a first incentive
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bonus to Vallee each Year during the term of this Agreement calculated
as the sum of the following:
(i) Four Thousand Dollars ($4,000.00) for each one cent ($.01) of
Annual Earnings Per Share over $3.00 and up to $4.00 in each
Year for which the first incentive bonus is to be paid; and
(ii) Five Thousand Dollars ($5,000.00) for each one cent ($.01) of
Annual Earnings Per Share over $4.00 and up to $5.00 in each
Year for which the first incentive bonus is to be paid; and
(iii) Seven Thousand Dollars ($7,000.00) for each one cent ($.01) of
Annual Earnings Per Share over $5.00 in each Year for which the
first incentive bonus is to be paid.
By way of example, consider the following hypothetical
circumstances:
(1) In the event Annual Earnings Per Share were determined in any
applicable Year to be $2.90, then Vallee would be entitled to no
first incentive bonus hereunder for that Year;
(2) In the event Annual Earnings Per Share were determined in any
applicable Year to be $4.50, then Vallee would be entitled to
$650,000 of first incentive bonus hereunder for that Year
($4,000 times 100 plus $5,000 times 50); and
(3) In the event Annual Earnings Per Share were determined in any
applicable Year to be $5.50, then Vallee would be entitled to
$1,250,000 of incentive bonus hereunder for that Year ($4,000
times 100 plus $5,000 times 100 plus $7,000 times 50).
(c) The final determination and payment of the first incentive bonus shall
be made by the Company to Vallee not later than one hundred ninety (190)
days following the termination
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of each Year. Notwithstanding the foregoing sentence, the Company shall
on a quarterly basis estimate the portion of Annual Earnings Per Share
which the Company has earned during such fiscal quarter ("Interim
Quarterly Earnings") and shall, as soon as practicable after the end of
each fiscal quarter, pay to Vallee any portion of the first incentive
bonus which it reasonably anticipates will be due to Vallee at the end
of the full Year.
By way of example:
(1) If the Company were to determine at the end of the first fiscal
quarter of any Year that the Company had Interim Quarterly
Earnings of $1.25 for that quarter, then it would pay to Vallee
the sum of $225,000 in respect of the first incentive bonus as
soon as practicable after the end of such quarter. This amount
is determined by (A) taking the annualized cumulative year to
date Interim Quarterly Earnings of $5.00 ($1.25 x 4); (B)
calculating the resulting annualized first incentive bonus
thereon of $900,000 ($4,000 x 100; plus $5,000 x 100); (C)
prorating such amount for the portion of the Year that elapsed
(25%) and (D) subtracting any prior quarterly estimates and
payments in respect of the first incentive bonus (none in this
example).
(2) In addition, if the Company were thereafter to determine at the
end of the second fiscal quarter of such Year that the Company
had Interim Quarterly Earnings of $.75 for the second quarter,
then it would make no additional payment to Vallee in respect of
first incentive bonus at the conclusion of the second quarter
since the estimated first incentive bonus based upon the
annualized cumulative Interim Quarterly Earnings was less than
the amount determined after the end of the first quarter. The
first quarter's Interim Quarterly Earnings of $1.25 plus the
second quarter's Interim
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Quarterly Earnings of $.75 annualized (times 2), or $4.00, is
less than the $5.00 estimate determined after the first quarter.
(3) Thereafter, if the Company were to determine at the end of the
third fiscal quarter of such Year that the Company had Interim
Quarterly Earnings of $1.30 for the third quarter, then it would
pay to Vallee the sum of $225,000 as soon as practicable after
the end of such quarter. This would be the case since in these
examples (1), (2) and (3) the Company would have had cumulative
Interim Quarterly Earnings of $3.30 for the three fiscal
quarters ($1.25 + $.75 + $1.30 = $3.30), and therefore an
annualized cumulative year to date Interim Quarterly Earnings of
$4.40 ($3.30 divided by 3 x 4) which would result in a first
incentive bonus of $600,000 or a prorated amount of $450,000 for
the first three quarters of the Year less the amount paid to
date.
At the conclusion of any Year, upon the actual determination of Annual Earnings
Per Share, a reconciliation of payments shall be made and the Company shall pay
to Vallee any additional amounts due; similarly, Vallee shall remain obligated
to repay to the Company any overpayments received by him for the first
incentive bonus during such period.
(d) In addition to annual base compensation and the first incentive bonus,
subject to and contingent upon approval by the Shareholders of the
Corporation at the Annual Meeting of Shareholders to be held on November
19, 1997 (or at any adjournments thereof), the Company shall pay a
second incentive bonus to Vallee each Year during the term of this
Agreement based upon the Company's ROC for the Year, in the amount of
$10,000 for each one-tenth of a percent (0.10%) by which the ROC exceeds
eight percent (8.0%). Thus, for example:
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If the ROC is: Then the second incentive bonus is:
[S] [C]
Less than 8.1% $0
9.5% $150,000
11.0% $300,000
12.1% $410,000
The final determination and payment of the second incentive bonus shall
be made by the Company to Vallee not later than one hundred ninety
(190) days following the termination of each Year.
(e) For any period of less than a full Year, the amount of such base
compensation, first incentive bonus and second incentive bonus payable
hereunder shall bear the same ratio to a full Year's base compensation
and incentive bonuses as the number of weekly periods for which Vallee
shall be entitled to such compensation bears to the fifty-two (52) (or
53 as the case may be) fiscal weeks in such Year. For example, if
Vallee's employment hereunder were for any reason to terminate after
26 weeks of fiscal 1999, he would be entitled to 26/52 of his base
pay for that year (26/52 of $750,000 being $375,000) and 26/52 of the
amount of the first and second incentive bonuses, if any, that would
have been due for fiscal Year 1999 based upon Annual Earnings Per
Share and the ROC for the entire fiscal Year 1999. Such incentive
bonuses would be payable to Vallee within the time required in
Paragraph 5(c) and 5(d) hereinabove.
(f) Except as specifically provided herein, including but not limited to
Paragraph 5(e) above, upon termination of this Agreement pursuant to
the terms hereof prior to June 29, 2001,
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Vallee shall be entitled to receive only such compensation as had
accrued and was unpaid to the effective date of termination.
(g) In addition to the compensation described above, during the term of
this Agreement Vallee shall be entitled to the benefits currently made
available by the Company to its employees in general (such as vacation
and insurances) and to its executive employees (such as a Company-
provided automobile and the Executive Life Insurance/Supplemental
Retirement Program) in accordance with the terms set therefor.
(h) With respect to the foregoing provisions of this Paragraph 5, it is
specifically agreed between Vallee and the Company that if, as a
result of a business combination transaction (whether in the form of a
merger, consolidation, transfer of substantial assets, or otherwise)
in which the Company has not been the acquiring and/or surviving
entity, it has become impractical or impossible to compute the Annual
Earnings Per Share and the ROC of the Company (as above defined), then,
in lieu of the amounts otherwise provided for in this Paragraph 5 as
the first incentive bonus and the second incentive bonus, the annual
rate of the base salary payable to Vallee under Paragraph 5(a) above
shall be increased in each Year by an amount equal to the highest
aggregate incentive compensation paid to Vallee by the Company (i.e.,
that is paid under Paragraphs 5(b) and 5(d) of this Agreement or any
incentive compensation paid under Vallee's prior employment contract
with the Company, as the case may be) in any one Year during the
3-Year period completed most recently prior to the date of
consummation of such business combination transaction.
Nothing contained in this Paragraph 5 shall be deemed to preclude the Company
from, and Vallee is entering into this Agreement with the understanding that
the Company will from time to time
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consider and take action with respect to, (A) granting or awarding to Vallee
additional items of compensation including (but not limited to) bonuses,
incentive stock, stock options, stock purchase agreements, phantom stock
awards, and participations in profit-sharing arrangements, in each case whether
under a plan of general or limited applicability or personal to Vallee, or (B)
paying, reimbursing or providing to Vallee such perquisites to the functions of
the office of Chairman of the Board and Chief Executive Officer of the Company
(and to the performance of his services in such office under this Agreement) as
may from time to time be determined by the Company and accepted by Vallee.
6. Early Termination
(a) Disability. The Company and Vallee agree that if Vallee becomes
permanently and totally disabled (as hereinafter defined) on or prior to
June 29, 2001, then for and during the entire period of such disability
commencing with the onset of such disability through the earlier of the
date of cessation of such disability or the date of Vallee's death, the
Company shall pay to Vallee a disability benefit in the annual amount
determined as set forth in Paragraph 6(a)(ii) below.
(i) The term "permanently and totally disabled", as used herein,
shall mean that Vallee has been totally disabled by injury or
illness (mental or physical) as a result of which he is
prevented from further performance of the duties of Chairman and
Chief Executive Officer of the Company and that such disability
is likely to be permanent and continuous during the remainder of
Vallee's life. Any determination as to whether or when Vallee
has become or has ceased to be permanently and totally disabled
shall, in the event of a dispute, be made by the American
Arbitration Association in Phoenix, AZ. After a determination by
agreement of the parties, or by the American Arbitration
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Association, either before or after June 29, 2001, that Vallee's
permanent and total disability, or the onset of such permanent
and total disability, occurred on or before June 29, 2001, then
payments due pursuant to this Paragraph 6 shall commence two (2)
months after such determination. Prior to the commencement of
the payments due pursuant to this Paragraph 6, Vallee shall be
paid the full amounts due pursuant to Paragraph 5 above.
(ii) The annual amount payable to Vallee as a disability benefit
hereunder shall be Three Hundred Thousand ($300,000) Dollars to
be paid in arrears in equal monthly installments.
(iii) From and after the commencement of payment by the Company of the
amounts provided for in this Paragraph 6(a), the provisions of
Paragraphs 3 through 5, and 9 and 10 of the Agreement shall be
of no further force or effect, but the provisions of Paragraphs
1, 2, 6, 7 and 8 and 11 through 16, inclusive, of this Agreement
shall continue as in effect on the last day prior to such
commencement; provided, that any amounts accrued and payable to
Vallee immediately prior to applicability of this paragraph
shall remain payable to Vallee and shall not be affected by the
provisions hereof.
(b) Cause. Vallee's employment hereunder may also be terminated by the
Company prior to the expiration of the stated term hereof without notice
for cause, including, but not limited to, Vallee's gross misconduct,
breach of any material term of this Agreement, willful breach, habitual
neglect or wanton disregard of his duties, or conviction of any criminal
act.
(c) Termination by Vallee in Certain Circumstances. Notwithstanding any
other provisions hereof, if, prior to June 29, 2001, a majority of the
membership of the Company's Board of Directors shall be comprised of
designees of any single person or entity which owns or controls the
voting rights of shares having a majority of the voting power of the
Company's then outstanding stock, or
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shall be comprised of designees of any group of persons and/or entities
acting in concert in matters relating to the exercise of such voting
rights (the date on which such majority is first elected or otherwise
first comes into being as a majority being referred to herein as the
"Controlling Date"), then the Company agrees that Vallee shall have the
right, upon at least 90 days' prior written notice to the Company, to
terminate this Agreement, such termination to be effective on the date
specified in the notice of termination but in no event prior to the
first anniversary of the Controlling Date; provided, however, that the
Company thereupon may elect to engage Vallee as a consultant pursuant to
Paragraph 9 hereinbelow.
7. Restrictive Covenants
(a) Vallee shall devote his full time, attention and energies to the
business of the Company, and shall not during the term of his
employment, be engaged in any other activity which will interfere with
the performance of his duties hereunder.
(b) Vallee agrees that during the term of this Agreement, he will not engage
directly or indirectly, either as principal, agent, proprietor,
director, officer, employee, or as a ten percent (10%) or more
shareholder of any Company (inclusive of the direct or indirect
shareholdings of his spouse, child or parent) or participate in the
ownership, management, operation or control or have any other
significant financial interest in any business which is competitive with
the business of the Company (including its subsidiaries) or any part
thereof.
(c) As part of the consideration for making this Agreement, Vallee agrees
that he will not, at any time during the term of this Agreement or
thereafter, divulge to another, trade secrets or confidential
information of the Company and its subsidiaries including, but not
limited to, the Company's unique business methods, processes, operating
techniques and "know-how"
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(all of which have been developed by the Company or its subsidiaries
through substantial effort and investment), profit and loss results,
market and supplier strategies, customer identity and needs, information
pertaining to employee effectiveness and compensation, inventory
strategy, product costs, gross margins or other information relating to
the affairs of the Company and its subsidiaries that he shall acquire
during his employment hereunder.
(d) Vallee further agrees that he will not, at any time during the term of
this Agreement, or any renewal thereof, or for a period of three (3)
years thereafter directly or indirectly, solicit or induce any of the
employees of the Company or its subsidiaries to terminate their
employment with their employer.
8. Consent to Injunction
Vallee agrees that the restrictions contained in Paragraphs 7(a), (b), (c) and
(d) of this Agreement are necessary for the protection of the Company and any
breach thereof will cause the Company irreparable damage for which there is no
adequate remedy at law. Vallee consents to the issuance of an injunction in
favor of the Company as a matter of right, enjoining the breach of any of the
aforesaid covenants by any court of competent jurisdiction; such right to an
injunction, however, to be cumulative and in addition to whatever other
remedies the Company may have. This paragraph 8 shall survive the termination
of this Agreement.
9. Option to Engage as Consultant
(a) The Company shall have the option to engage Vallee as a consultant for a
period of up to twenty-four (24) consecutive months immediately
following the termination for any reason of this Agreement or of
Vallee's employment with the Company. If the Company elects to exercise
such option, it shall so notify Vallee in writing within ten (10) days
after such
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termination. The consultation period shall commence three (3) days
after the giving of such notice or at such other time as mutually
agreed.
(b) The purpose of the consultation period shall be to allow for the
ordinary transfer of Vallee's duties to a successor. Vallees' duties as
a consultant would include, but not necessarily be limited to (i)
evaluating and reporting upon the progress of the Company's business
development; (ii) analyzing the Company's operating results; (iii)
analyzing and reporting upon proposed operations and the anticipated
financial results therefrom; (iv) evaluating and advising with respect
to the effectiveness of the Company's employees and (v) advising with
respect to supplier relationships and marketing strategies.
(c) During any such period of consultancy, Vallee shall be an independent
contractor and shall be compensated at an annual rate (to be paid
monthly in arrears) equal to the highest aggregate base and incentive
compensation paid to Vallee by the Company (i.e., under Paragraphs 5(a),
5(b) and 5(d) of this Agreement or under Vallee's prior employment
agreement with the Company, as the case may be) in any one Year during
the 3-Year period completed most recently prior to the beginning of the
consultancy. In addition, during such period of consultancy, Vallee
shall receive the same or substantially equivalent benefits with respect
to medical and life insurance and with respect to the use of a Company
furnished automobile as he received while an employee.
(d) During such consultancy, Vallee shall observe the provisions of each of
the subparagraphs of Paragraph 7 hereinabove and Vallee acknowledges
that in the event of his violation of such covenants the Company shall
be entitled to the relief described in Paragraph 8 hereinabove.
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10. Non-Renewal
(a) At least one year prior to the Termination Date (June 29, 2001), the
Company and Vallee shall begin discussions concerning the possible
renewal of the Agreement from and after the Termination Date. In the
event that either the Company or Vallee intends not to renew the
Agreement, the party with such intention shall so notify the other party
in writing as soon as may be practicable.
(b) In the event the Company notifies Vallee that it does not intend to
renew this Agreement, then should the Company fail to engage Vallee as a
consultant for at least twelve (12) months following the Termination
Date pursuant to Paragraph 9 hereof, Vallee shall have the option to
elect to be engaged as a consultant to the Company for a period of up to
twelve (12) months (as may be selected by Vallee) from and after the
Termination Date upon the same terms as set forth in Paragraphs 9(b),
(c) and (d). Should Vallee elect to be engaged in such consulting
capacity, he shall notify the Company of same within twenty (20) days
after the Termination Date. If Vallee is engaged as a consultant for any
reason following his employment, then the amount of compensation
received as a consultant shall offset the Company's monetary obligations
to him, if any, under any Company severance policy for employees
generally that is then in effect.
11. Law Governing Agreement
This Agreement shall be construed, interpreted and governed by the laws of the
State of New York, without giving effect to New York principles regarding
conflicts of laws, and irrespective of the fact that Vallee may reside in a
state or commonwealth other than New York.
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12. Succession
This Agreement shall extend to and be binding upon Vallee, his legal
representative, heirs and distributees and upon the Company, its successors and
assigns.
13. Prior Agreements
With the exception of any agreement relating to the Company's employee benefit
programs (such as agreements relating to stock options and the Executive Life
Insurance/Supplemental Retirement Program), any and all prior agreements
between the Company and Vallee, written or oral, relating to Vallee's
employment by the Company are hereby canceled and are of no further effect.
14. Entire Agreement
This Agreement contains the entire agreement of the parties with respect to its
subject matter and no waiver, modification or change of any of its provisions
shall be valid unless in writing and signed by the parties against whom such
claimed waiver, modification or change is sought to be enforced.
15. Waiver of Breach
All notices pursuant to this Agreement shall be in writing and shall be given
by certified mail, or the equivalent, return receipt requested, addressed to
the parties hereto at the addresses as set forth above, or to such addresses as
may hereafter be specified by notice in writing in the same manner by any party
or parties.
16. Arbitration
Except for the Company's right to seek equitable relief as provided herein, any
controversy arising out of or relating to Vallee's employment hereunder, the
termination of such employment or this Agreement, or any written modification
or written extension thereof, including any claim for damages, whether based on
contract, tort or any other theory of law, shall be settled by arbitration
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in either Phoenix, AZ or New York, NY in accordance with the commercial rules
then obtaining of the American Arbitration Association before a panel of three
arbitrators. The arbitrators sitting in any such controversy shall have no
power to alter or modify any express provisions of this Agreement or any
writing modifying or extending this Agreement, or to render any award which by
its terms effects any such alteration or modification. The parties consent to
the jurisdiction of the state or federal courts in Phoenix, AZ or New York, NY
for all purposes in connection with arbitration including the entry of judgment
on any award. The parties consent that any process or notice of motion or other
application to any of said courts, and any paper in connection with
arbitration, may be served by certified mail return receipt requested or by
personal service or in such other manner as may be permissible under the rules
of the applicable court or arbitration tribunal, provided a reasonable time for
appearance is allowed. The parties further agree that arbitration proceedings
must be instituted within one year after the claimed breach occurred, and that
such failure to institute arbitration proceedings within such period shall
constitute an absolute bar to the institution of any administrative, court or
arbitration proceedings and a waiver of all claims.
IN WITNESS WHEREOF, the parties have executed this agreement effective
as of the day and year first above written.
AVNET, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Title: Senior VP & CFO
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
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