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EXHIBIT NO. 99: Employment Agreement dated as of May 22, 2000 between the
Registrant and Xxxxxxx Xxxxxx
AGREEMENT effective as of May 22, 2000 between AVNET, INC., a New York
corporation with a principal place of business at 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 ("Employer") and Xxxxxxx X. Xxxxxx, residing at 000 Xxxx
Xxxxxxxx Xxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 ("Employee").
WITNESSETH
1. Employment, Salary, Benefits:
1.1 Employment. Employer agrees to employ Employee and Employee agrees to
accept employment upon the terms and conditions hereinafter set forth.
1.2 Term. Employee's employment shall commence on May 22, 2000 and subject
to earlier termination as provided herein, shall continue until
terminated by either party provided, however, that the party desiring
to terminate the employment gives written notice thereof to the other
not less than one (1) year prior to the date of actual termination of
employment.
1.3 Duties. Employee is hereby engaged in an executive capacity and shall
perform such duties for Employer, or Employer's subsidiaries, divisions
and operating units as may be assigned to him from time to time by the
President of Employer's Electronics Marketing group ("EM President") or
the Chief Executive Officer of Employer. Employee is currently engaged
as Executive Vice President of Global Operations/Finance of Employer's
Electronics Marketing group. If Employee is elected an officer or a
director of Employer or any subsidiary or division thereof, he shall
serve as such without additional compensation.
1.4 Compensation. For all services to be rendered by Employee and for all
covenants undertaken by him pursuant to the Agreement, Employer shall
pay and Employee shall accept such compensation (including base salary
and incentive compensation) as shall be agreed upon from time to time
between Employer and Employee. In the event Employee's employment
hereunder is terminated by the one (1) year notice provided for in
Section 1.2 above and Employer and Employee fail to agree upon
compensation during all or any portion of the one (1) year notice
period prior to termination, then Employee's compensation (base salary
and incentive compensation) during such portion of the notice period
shall remain the same in cash amount as was most recently agreed upon
(or as resulted on an average basis for each pay period from the
formula most recently agreed upon).
1.5 Compensation on Termination. Upon termination of this Agreement,
Employee shall be entitled to receive only such compensation as had
accrued and was unpaid to the effective date of termination. If the
termination occurs other than at the end of a fiscal year of Employer,
the compensation payable to Employee (including base salary and
incentive
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compensation) shall bear the same ratio to a full fiscal year's
remuneration as the number of days for which employee shall be entitled
to remuneration bears to 365 days.
1.6 Additional Benefits. In addition to the compensation described in
Subsection 1.4, Employee shall be entitled to vacation, insurance,
retirement and other benefits (except for severance pay benefit which
the one-year termination notice described above is intended to replace)
as are afforded to personnel of Employer's United States based
Electronics Marketing group operating units generally and which are in
effect from time to time. It is understood that Employer does not by
reason of this Agreement obligate itself to provide any such benefits
to such personnel. Employee also participates in the Employer's
Executive Officers' Supplemental Life Insurance and Retirement Benefits
Program (the "Program") pursuant to the terms and conditions applicable
to the Program.
2. Early Termination.
2.1 Death or Disability. Employee's employment hereunder shall terminate on
the date of Employee's death or upon Employee suffering mental or
physical injury, illness or incapacity which renders him unable to
perform his customary duties hereunder on a full-time basis for a
period of 365 substantially consecutive days, on the 365th such day.
The opinion of a medical doctor licensed to practice in the State of
Arizona (or such other state wherein Employee then resides) and having
Board certification in his field of specialization or the receipt of or
entitlement of Employee to disability benefits under any policy of
insurance provided or made available by Employer or under Federal
Social Security laws, shall be conclusive evidence of such disability.
2.2 Cause. Employee's employment hereunder may also be terminated by
Employer at any time prior to the expiration of the term hereof without
notice for cause, including, but not limited to, Employee'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.
3. Competitive Employment:
3.1 Full time. Employee shall devote his full time, best efforts, attention
and energies to the business and affairs of Employer and shall not,
during the term of his employment, be engaged in any other activity
which, in the sole judgment of Employer, will interfere with the
performance of his duties hereunder.
3.2 Non-Competition. While employed by Employer or any subsidiary, division
or operating unit of Employer, Employee shall not, without the written
consent of the EM President or the Chief Executive Officer of Employer,
directly or indirectly (whether through his spouse, child or parent,
other legal entity or otherwise): own, manage, operate, join, control,
participate in, invest in, or otherwise be connected with, in any
manner, whether as an officer, director, employee, partner, investor,
shareholder, consultant, lender or otherwise, any business entity which
is engaged in, or is in any way related to or
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competitive with the business of Employer, provided, however,
notwithstanding the foregoing, Employee shall not be prohibited from
owning, directly or indirectly, up to 5% of the outstanding equity
interests of any company or entity the stock or other equity interests
of which is publicly traded on a national securities exchange or on the
NASDAQ over-the-counter market.
3.3 Non-Solicitation. Employee further agrees that he will not, at any time
while employed by Employer or any subsidiary, division or operating
unit of Employer and for a period of one year after the termination of
employment with Employer, without the written consent of an officer
authorized to act in the matter by the Board of Directors of Employer,
directly or indirectly, on Employee's behalf or on behalf of any person
or entity, induce or attempt to induce any employee of Employer or any
subsidiary or affiliate of Employer (collectively the "Employer Group")
or any individual who was an employee of the Employer Group during the
one (1) year prior to the date of such inducement, to leave the employ
of the Employer Group or to become employed by any person other than
members of the Employer Group or offer or provide employment to any
such employee.
4. Definitions:
The words and phrases set forth below shall have the meanings as
indicated:
4.1 Confidential Information. That confidential business information of the
Employer, whether or not discovered, developed, or known by Employee as
a consequence of his employment with Employer. Without limiting the
generality of the foregoing, Confidential Information shall include
information concerning customer identity, needs, buying practices and
patterns, sales and management techniques, employee effectiveness and
compensation information, supply and inventory techniques,
manufacturing processes and techniques, product design and
configuration, market strategies, profit and loss information, sources
of supply, product cost, gross margins, credit and other sales terms
and conditions. Confidential Information shall also include, but not be
limited to, information contained in Employer's manuals, memoranda,
price lists, computer programs (such as inventory control, billing,
collection, etc.) and records, whether or not designated, legended or
otherwise identified by Employer as Confidential Information.
4.2 Developments. Those inventions, discoveries, improvements, advances,
methods, practices and techniques, concepts and ideas, whether or not
patentable, relating to Employer's present and prospective activities
and products.
5. Developments, Confidential Information and Related Materials:
5.1 Assignment of Developments. Any and all Developments developed by
Employee (acting alone or in conjunction with others) during the period
of Employee's employment hereunder shall be conclusively presumed to
have been created for or on behalf of Employer (or Employer's
subsidiary or affiliate for which Employee is working) as part of
Employee's obligations to Employer hereunder. Such Developments shall
be the property of and belong to Employer (or Employer's subsidiary or
affiliate for which
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Employee is working) without the payment of consideration therefor in
addition to Employee's compensation hereunder, and Employee hereby
transfers, assigns and conveys all of Employee's right, title and
interest in any such Developments to Employer (or Employer's subsidiary
or affiliate for which Employee is working) and agrees to execute and
deliver any documents that Employer deems necessary to effect such
transfer on the demand of Employer.
5.2 Restrictions on Use and Disclosure. Employee agrees not to use or
disclose at any time after the date hereof, except with the prior
written consent of an officer authorized to act in the matter by the
Board of Directors of Employer, any Confidential Information which is
or was obtained or acquired by Employee while in the employ of Employer
or any subsidiary or affiliate of Employer, provided, however, that
this provision shall not preclude Employee from (i) the use or
disclosure of such information which presently is known generally to
the public or which subsequently comes into the public domain, other
than by way of disclosure in violation of this Agreement or in any
other unauthorized fashion, or (ii) disclosure of such information
required by law or court order, provided that prior to such disclosure
required by law or court order Employee will have given Employer three
(3) business days' written notice (or, if disclosure is required to be
made in less than three (3) business days, then such notice shall be
given as promptly as practicable after determination that disclosure
may be required) of the nature of the law or order requiring disclosure
and the disclosure to be made in accordance therewith.
5.3 Return of Documents. Upon termination of Employee's employment with
Employer, Employee shall forthwith deliver to the EM President or Chief
Executive Officer of Employer all documents, customer lists and related
documents, price and procedure manuals and guides, catalogs, records,
notebooks and similar repositories of or containing Confidential
Information and/or Developments, including all copies then in his
possession or control whether prepared by him or others.
6. Miscellaneous:
6.1 Consent to Arbitration. Except for the equitable relief provisions set
forth in Section 6.2 below, Employer and Employee agree to arbitrate
any controversy or claim arising out of this Agreement or otherwise
relating to Employee's employment or the termination of employment or
this Agreement, in accordance with the provisions of the Mutual
Agreement to Arbitrate Claims, a copy of which is annexed hereto as
Exhibit A.
6.2 Equitable Relief. Employee acknowledges that any material breach of any
of the provisions of Sections 3 and/or 5 would entail irreparable
injury to Employer's goodwill and jeopardize Employer's competitive
position in the marketplace or Confidential Information, or both, and
that in addition to Employer's other remedies, Employee consents and
Employer shall be entitled, as a matter of right, to an injunction
issued by any court of competent jurisdiction restraining any breach of
Employee and/or those with whom Employee is acting in concert and to
other equitable relief to prevent any such actual, intended or likely
breach.
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6.3 Survival. The provisions of Sections 3.2, 3.3, 4, 5, and 6 shall
survive the termination of Employee's employment hereunder.
6.4 Interpretation. If any court of competent jurisdiction or duly
constituted arbitration panel shall refuse to enforce any or all of the
provisions hereof because they are more extensive (whether as to
geographic scope, duration, activity, subject or otherwise) than is
reasonable, it is expressly understood and agreed that such provisions
shall not be void, but that for the purpose of such proceedings and in
such jurisdiction, the restrictions contained herein shall be deemed
reduced or limited to the extent necessary to permit enforcement of
such provisions.
6.5 Succession. This Agreement shall extend to and be binding upon
Employee, his legal representatives, heirs and distributees and upon
Employer, its successors and assigns.
6.6 Entire Agreement. This Agreement and the Exhibits hereto contain the
entire agreement of the parties with respect to their subject matter
and no waiver, modification or change of any provisions hereof shall be
valid unless in writing and signed by the parties against whom such
claimed waiver, modification or change is sought to be enforced.
6.7 Waiver of Breach. The waiver of any breach of any term or condition of
this Agreement shall not be deemed to constitute a waiver of any other
term or condition of this Agreement.
6.8 Notices. All notices pursuant to this Agreement shall be in writing and
shall be given by registered or certified mail, or the equivalent,
return receipt requested, addressed to the parties hereto at the
addresses set forth above, or to such address as may hereafter be
specified by notice in writing in the same manner by any party or
parties.
6.9 Headings. Except for the headings in Section 4, the headings of the
sections and subsections are inserted for convenience only and shall
not be deemed to constitute a part hereof or to affect the meaning
thereof.
IN WITNESS WHEREOF, parties have executed this Agreement effective as
of the day and year first above written.
AVNET, INC. /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
By /s/ Xxx Xxxxxx
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Title CEO
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EXHIBIT A
MUTUAL AGREEMENT TO ARBITRATE CLAIMS
I recognize that differences may arise between Avnet, Inc. ("the
Company") and me during or following my employment with the Company, and that
those differences may or may not be related to my employment. I understand and
agree that by entering into this Agreement to Arbitrate Claims ("Agreement"), I
anticipate gaining the benefits of a speedy, impartial dispute-resolution
procedure.
Except as provided in this Agreement, the Federal Arbitration Act
shall govern the interpretation, enforcement and all proceedings pursuant to
this Agreement. To the extent that the Federal Arbitration Act is inapplicable,
applicable state law pertaining to agreements to arbitrate shall apply.
I understand that any reference in this Agreement to the Company will
be a reference also to all divisions, subsidiaries and affiliates of the
Company. Additionally, except as otherwise provided herein, any reference to the
Company shall also include all benefit plans; the benefit plans' sponsors,
fiduciaries, administrators, affiliates; and all successors and assigns of any
of them.
CLAIMS COVERED BY THE AGREEMENT
The Company and I mutually consent to the resolution by arbitration of
all claims or controversies ("claims"), whether or not arising out of my
employment (or its termination), that the Company may have against me or that I
may have against the Company or against its officers, directors, employees or
agents in their capacity as such or otherwise. The claims covered by this
Agreement include, but are not limited to, claims for wages or other
compensation due; claims for breach of any contract or covenant (express or
implied); tort claims; claims for discrimination and harassment (including, but
not limited to, race, sex, sexual orientation, religion, national origin, age,
marital status, medical condition, handicap or disability); claims for benefits
(except where an employee benefit or pension plan specifies that its claims
procedure shall culminate in an arbitration procedure different from this one);
and claims for violation of any federal, state, or other governmental law,
statute, regulation, or ordinance, except claims excluded in the section
entitled "Claims Not Covered by the Agreement."
Except as otherwise provided in this Agreement, both the Company and I
agree that neither of us shall initiate or prosecute any lawsuit or
administrative action (other than an administrative charge of discrimination) in
any way related to any claim covered by this Agreement.
CLAIMS NOT COVERED BY THE AGREEMENT
Claims I may have for workers' compensation or unemployment
compensation benefits are not covered by this Agreement.
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Also not covered are claims by the Company for injunctive and/or other
equitable relief including, but not limited to, claims for injunctive and/or
other equitable relief for unfair competition and/or the use and/or unauthorized
disclosure of trade secrets or confidential information, as to which I
understand and agree that the Company may seek and obtain relief from a court of
competent jurisdiction.
REQUIRED NOTICE OF ALL CLAIMS AND STATUTE OF LIMITATIONS
The Company and I agree that the aggrieved party must give written
notice of any claim to the other party within one (1) year of the date the
aggrieved party first has knowledge of the event giving rise to the claim;
otherwise the claim shall be void and deemed waived even if there is a federal
or state statute of limitations which would have given more time to pursue the
claim.
Written notice to the Company, or its officers, directors, employees or
agents, shall be sent to its President at the Company's then-current address. I
will be given written notice at the last address recorded in my personnel file.
The written notice shall identify and describe the nature of all claims
asserted and the facts upon which such claims are based. The notice shall be
sent to the other party by certified or registered mail, return receipt
requested.
DISCOVERY
Each party shall have the right to take the deposition of one
individual and any expert witness designated by another party. Each party also
shall have the right to propound requests for production of documents to any
party. Additional discovery may be had only where the panel of arbitrators
selected pursuant to this Agreement so orders, upon a showing of substantial
need.
At least thirty (30) days before the arbitration, the parties must
exchange lists of witnesses, including any expert, and copies of all exhibits
intended to be used at the arbitration.
SUBPOENAS
Each party shall have the right to subpoena witnesses and documents for
the arbitration.
ARBITRATION PROCEDURES
The Company and I agree that, except as provided in this Agreement, any
arbitration shall be in accordance with the then-current Model Employment
Arbitration Procedures of the American Arbitration Association ("AAA") before a
panel of three arbitrators who are licensed to practice law in the state where
the arbitration is to take place ("the Panel"). The arbitration shall take place
in or near the city in which I am or was last employed by the Company.
The Panel shall apply the substantive law (and the law of remedies, if
applicable) of the state in which the claim arose, or federal law, or both, as
applicable to the claim(s) asserted: The
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Federal Rules of Evidence shall apply. The Panel, and not any federal, state,
or local court or agency, shall have exclusive authority to resolve any dispute
relating to the interpretation, applicability, enforceability or formation of
this Agreement, including but not limited to any claim that all or any part of
this Agreement is void or voidable. The Panel shall render an award and opinion
in the form typically rendered in labor arbitrations. The arbitration shall be
final and binding upon the parties.
The Panel shall have jurisdiction to hear and rule on pre-hearing
disputes and is authorized to hold pre-hearing conferences by telephone or in
person, as the Panel deems necessary. The Panel shall have the authority to
entertain a motion to dismiss and/or a motion for summary judgment by any party
and shall apply the standards governing such motions under the Federal Rules of
Civil Procedure.
Either party, at its expense, may arrange for and pay the cost of a
court reporter to provide a stenographic record of proceedings.
ARBITRATION FEES AND COSTS
The Company and I shall equally share the fees and costs of the Panel.
Each party shall pay for its own costs and attorneys' fees, if any. However, if
any party prevails on a statutory claim which affords the prevailing party
attorneys' fees, or if there is a written agreement providing for fees, the
Panel may award reasonable fees to the prevailing party.
INTERSTATE COMMERCE
I understand and agree that the Company is engaged in transactions
involving interstate commerce and that my employment involves such commerce.
REQUIREMENTS FOR MODIFICATION OR REVOCATION
This Agreement to arbitrate shall survive the termination of my
employment. It can only be revoked or modified by a writing signed by me and an
officer of the Company which specifically states an intent to revoke or modify
this Agreement.
SOLE AND ENTIRE AGREEMENT
This is the complete agreement of the parties on the subject of
arbitration of disputes, except for any arbitration agreement in connection with
any pension or benefit plan. This Agreement supersedes any prior or
contemporaneous oral or written understanding on the subject. No party is
relying on any representations, oral or written, on the subject of the effect,
enforceability or meaning of this Agreement, except as specifically set forth in
this Agreement.
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CONSTRUCTION
If any provision of this Agreement is adjudged to be void or otherwise
unenforceable, in whole or in part, such adjudication shall not affect the
validity of the remainder of the Agreement.
CONSIDERATION
The promises by the Company and by me to arbitrate differences, rather
than litigate them before courts or other bodies, provide consideration for each
other.
NOT AN EMPLOYMENT AGREEMENT
This Agreement is not, and shall not be construed to create, any
contract of employment, express or implied. Nor does this Agreement in any way
alter the "at-will" status of my employment.
VOLUNTARY AGREEMENT
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I
UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY
AND ME RELATING TO THE SUBJENS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND
THAT I HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY
PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS
AGREEMENT ITSELF.
I UNDERSTAND THAT BY SIGNING THIS AGREEMENT I AM GIVING UP MY RIGHT TO
A JURY TRIAL.
I FURTHER ACKNOWLEDGE THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS
THIS AGREEMENT WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED MYSELF OF THAT
OPPORTUNITY TO THE EXTENT I WISH TO DO SO.
EMPLOYEE AVNET, INC.
/s/ Xxxxxxx Xxxxxx By /s/ Xxx Xxxxxx
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Signature of Employee Signature of Authorized Company
Representative
Xxxxxxx Xxxxxx CEO
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Print Name of Employee Title of Representative
5-22-00 5-31-00
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Date Date
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