AMENDMENT TO EMPLOYMENT AGREEMENT
This amendment to employment agreement is made this 28th day of March, 2005
by and between NU HORIZONS ELECTRONICS CORP., a Delaware corporation (the
"Company") and XXXXXX XXXXXX, residing at 00 Xxxxxxxxx Xx, Xxxxxxxx, Xxx Xxxx
00000 (the "Employee").
W I T N E S S E T H
WHEREAS, the Company and the Employee are parties to an Employment
Agreement dated as of September 13, 1996 (the "Employment Agreement"); and
WHEREAS, the Company and the Employee desire to amend the Employment
Agreement in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Section 3 of the Employment Agreement is hereby amended to read as
follows:
"3. TERM. Subject to earlier termination on the terms and conditions
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hereinafter provided, the term of this Agreement shall be for a continually
renewing five (5) year term so that , for the purposes of calculating the
payments due to Employee upon any termination hereof, the Employee's
unexpired term of employment shall be five (5) years from any termination
of his employment in accordance with paragraph 10 hereof, other than any
termination pursuant to either paragraph 10(d) or paragraph 10(e) hereof."
2. Section 10 of the Employment Agreement is hereby amended to read as
follows:
"10. TERMINATION.
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(a) General. Except as otherwise provided in this Agreement, in the
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event of termination of the Employee's employment under this Agreement, he,
his dependents or his estate, as may be the case, shall be entitled to
receive benefits under the Company's employee benefit plans described above
only until the date of such termination, in accordance with the applicable
terms and conditions of each plan.
(b) Termination Due to Death. In the event that the Employee's
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employment is terminated due to his death, Employee's estate shall be
entitled to the benefits set forth in paragraph 6 hereof for a five-year
period.
(c) Termination Due to Disability. In the event of "disability" as
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defined in paragraph 7 hereof, the Company or the Employee may terminate
the Employee's employment. If the Employee's employment is terminated due
to such "disability," he shall be entitled to the benefits set forth in
such paragraph 7 for a five-year period.
(d) Termination by the Company for Cause. In the event that the
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Employee's employment is terminated for Cause, he shall be entitled solely
to his base salary (as calculated in accordance with paragraph 5(a) (i) and
(ii)) through the date on which notice of termination is delivered to
Employee. For the purposes of this Agreement, "Cause" shall be defined as
an act of moral turpitude materially adversely affecting the financial
interest of the Company.
(e) Termination Without Cause.
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(i) Termination Without Cause shall mean termination of the
Employee's employment by the Company other than due to death,
Disability or for Cause.
(ii) In the event of Termination Without Cause, the Employee
shall be deemed to have effected a "Retirement" pursuant to the Nu
Horizons Electronics Corp. Executive Retirement Plan (the "Retirement
Plan") and shall be entitled to receive Benefits (as defined in the
Retirement Plan) in accordance with the terms of the Retirement Plan.
(f) Termination Following Change in Control.
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(i) In the event that Employee shall be terminated following a Change
in Control of the Company, the Employee shall be entitled to and shall
immediately receive as a lump sum payment an amount equal to, subject to
paragraph 10(f)(i) below, three (3) times the average of the total annual
compensation paid by the Company to Employee, with respect to the five
fiscal years of the Company prior to the change of control, minus $100.00.
(ii) The payment to be made pursuant to paragraph 10(f)(i) above shall
be made by the Company to the Employee in an amount (net of the Federal and
State income tax thereon computed at the marginal regular Federal and State
income tax rates of the Employee in the tax year in which this payment is
made and also net of any excise, penalty or other similar tax) which shall
cause the net after tax amount (calculated as provided in the foregoing
parenthetical clause) received by the Employee with respect to the payment
made under this paragraph 10(f)(i) to be equal to the amount set forth in
paragraph 10(f)(i) above, at the time of such payment and without
consideration for the time value of money.
(iii) For the purposes of this Agreement, "Change in Control" shall
mean:
(A) a change in control as such term is presently defined in
Regulation 240.12b 2 under the Securities Exchange Act of 1934
("Exchange Act");
(B) if during the term of employment any "person" (as such term
is used in Section 13(d) and 14(d) of the Exchange Act) other than the
Company or any person who on the date of this Agreement is a director
or officer of the Company, becomes the "beneficial owner" (as defined
in Rule 13(d) 3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% of the voting power of the
Company's then outstanding securities; or
(C) if during the term of employment, individuals who at the
beginning of such period constitute the Board of Directors of the
Company, including individuals who are nominated or approved by a
majority of the Board then serving, cease for any reason other than
death, disability or retirement to constitute at least a majority
thereof.
(g) Nature of Payments. Any amounts due under this paragraph 10 are in the
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nature of severance payments or liquidated damages or both, and shall fully
compensate the Employee and his dependents or estate, as the case may be, for
any and all obligations arising from the employment relationship created hereby,
any lawful actions during such relationship and the termination thereof, and
they are not in the nature of a penalty.
3. Except as specifically amended by this Amendment, the Employment
Agreement shall remain in full force and effect in all respects as originally
executed.
4. This Amendment may be executed in several counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
instrument. This Amendment shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of New York,
applicable to contracts made and to be performed entirely in New York.
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the
first date written above.
NU HORIZONS ELECTRONICS CORP.
By: /s/Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President, Finance
By: /s/Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Employee
