Exhibit 10D
EMPLOYMENT AGREEMENT
This agreement is made by and between XXX XXXXXX, having offices at 0000
Xxxxx 00xx Xxxxxx, Xxxxxxx, XX 00000 (the "Executive") and AVNET, INC., a New
York corporation with its principal executive offices at 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, XX 00000 (the "Company"), to be effective as of June 29, 2002.
WHEREAS, the Executive is now and has been employed by the Company as
Chairman and Chief Executive Officer pursuant to a certain Employment Agreement
dated September 25, 1997 as amended by a certain Amendment to Employment
Agreement dated September 20, 2000 (together referred to herein as the "Prior
Employment Agreement"); and
WHEREAS, the Company wishes to provide for the continued employment of the
Executive in the role of Chairman and Chief Executive Officer beyond the
termination date of the prior Employment Agreement; and
WHEREAS, the Executive wishes to accept such continued responsibilities
and employment and to render services to the Company in accordance with the
provisions of this Employment Agreement (referred to herein as the "Agreement");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND RESPONSIBILITIES
a. Employment. The Company hereby employs Executive and Executive
hereby accepts employment upon the terms and conditions hereafter set forth.
b. Duties and Responsibilities. Executive is currently the Chairman and
Chief Executive Officer of the Company and is hereby engaged to continue such
duties as Chairman and Chief Executive Officer for the term of this Agreement.
Executive shall serve without additional compensation as a Director of the
Company and as an officer or director of subsidiaries, divisions or affiliates
if elected or appointed to such offices. In the event that Executive is not
elected to serve as Chairman and Chief Executive Officer of the Company or is
otherwise relieved of his duties as such, he shall not be required to perform
other duties in lieu thereof.
c. Performance of Duties. Executive agrees to devote his full time
attention and best efforts to the business and affairs of the Company. Executive
shall perform all duties and responsibilities commensurate with his position as
Chairman and Chief Executive Officer and shall follow the reasonable direction
of the Board of Directors of the Company. Executive may serve on civic,
charitable or corporate boards or committees, fulfill speaking engagements and
manage his personal affairs, so long as the Company, in its sole discretion,
reasonably determines that such activities do not interfere, compete with or
otherwise pose a conflict of interest with respect to the performance of
Executive's duties and responsibilities. Executive shall comply with Company
policies and procedures as adopted from time to time, including the Company's
Code of Conduct.
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2. TERM OF AGREEMENT
This Agreement shall be effective beginning June 29, 2002 (the "Effective
Date") and, subject to earlier termination as provided in Section 5 below, shall
continue through July 1, 2005, and thereafter, shall automatically be extended
for additional one-year increments until terminated pursuant to the provisions
of Section 5.
3. COMPENSATION
For all services to be rendered by Executive and for all covenants
undertaken by him, the Company shall pay and Executive shall accept the
following compensation:
a. Base Salary. Executive shall be paid a base salary within the range
of $825,000 to $1,000,000 per fiscal year, as determined by the Compensation
Committee of the Company's Board of Directors (referred to as the Compensation
Committee) or the full Board of Directors; 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 located in the United States. The
Compensation Committee shall review the base salary of Executive on no less than
an annual basis. The Compensation Committee has set Executive's base salary at
$825,000 for fiscal 2003.
b. Incentive Programs and Bonuses. For each fiscal year during the term
of the Agreement, beginning with fiscal year 2003, Executive shall be eligible
to receive incentive payments for services rendered during the fiscal year
pursuant to the Company's Executive Incentive Plan (the "Incentive Plan"), as
may be amended from time to time, or any alternative, successor or replacement
plan or program. The amount of any actual incentive payment in any fiscal year
shall be measured by the Company's performance against goals established in
accordance with the Incentive Plan and may range from zero to any maximum
established pursuant to the Incentive Plan. If as a result of a business
combination (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 Executive's annual incentive payment pursuant to the Incentive Plan,
then in lieu of any such incentive payment, the annual rate of base salary
payable to Executive under Section 3(a) above shall be increased in such fiscal
year (or portion thereof) by the highest aggregate incentive compensation paid
to Executive by the Company in any fiscal year during the 3-year period
completed most recently prior to the date of consummation of such business
combination transaction. In addition to any incentive payments under the
Incentive Plan, Executive shall be eligible to receive such additional bonuses
as may be awarded by the Committee or the Board of Directors. In the event
Executive is employed for only part of a fiscal year, Executive's incentive
payment for the applicable fiscal year will be appropriately pro-rated.
c. Participation in Equity Plans. Executive shall participate in the
Company's various stock option plans and equity incentive plans as may be in
effect from time to time; provided, however that the grant of any stock options,
restricted stock, phantom stock or other grant or award of equity shall be made
by the Compensation Committee or the Board of Directors.
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d. Employee Benefits. Executive shall be entitled to participate, on
terms no less favorable than the terms offered to other senior executives of the
Company, in any group and/or executive life, hospitalization or disability
insurance plan, health program, profit sharing, deferred compensation plan,
employee stock purchase plan, 401(k) plan, pension plan and similar benefit
plans (qualified, non-qualified and supplemental) and other fringe benefits of
the Company and similar programs in effect from time to time. Executive also
currently participates in the Company's Executive Officers' Supplemental Life
Insurance and Retirement Program.
e. Vacation and Other Absences. Executive shall be entitled to paid
vacations each year in accordance with the Company's then-current vacation
policy for senior executives. Executive shall be subject to the policies and
procedures relating to other absences from regular duties for holidays, sick or
disability leave, leave of absence without pay, or leave for other reasons, as
those customarily provided to Company's senior executives.
f. Expenses. The Company shall reimburse Executive's travel,
entertainment and other business expenses that are reasonably and necessarily
incurred by him in the course of performing his duties and properly documented;
all in accordance with the Company's policies as in effect from time to time.
4. RESTRICTIVE COVENANTS
a. Non-Competition. Executive agrees that during the term of this
Agreement, including all renewals, and for any period thereafter during which
Executive is engaged and paid by the Company as a consultant, Executive 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 and
affiliates, or any part thereof.
b. Confidential Information. Executive agrees that he will not, at any
time during the term of this Agreement or thereafter, disclose to another or use
for any purpose other than performing his duties and responsibilities, trade
secrets or confidential information of the Company and its subsidiaries and
affiliates including, but not limited to, the Company's unique business methods,
processes, operating techniques and "know-how" (all of which have been developed
by the Company or its subsidiaries and affiliates 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 and
affiliates that he shall have acquired during his employment with the Company.
c. Non-Solicitation of Employees. Executive agrees that he will not, at
any time during the term of this Agreement, including all renewals and at any
time thereafter, directly or indirectly, solicit or induce any of the employees
of the Company or its subsidiaries and affiliates to terminate their employment
with their employer.
5. TERMINATION RIGHTS AND RESPONSIBILITIES
The Company may terminate Executive's employment with or without cause,
and Executive may voluntarily terminate his employment, at any time during the
term of this Agreement, subject to the provisions of this Section 5.
a. Executive Voluntary Termination of Agreement. This Agreement shall
terminate one year from the date Executive provides written notice of
termination to the Company; provided, however, that within thirty (30) days
after receiving such written notice the Company may give written notice to
Executive that it elects to engage him as a Consultant pursuant to Section 6
below for up to one additional year beyond such termination date. Following such
termination, Executive shall be paid base salary through the termination date
and will be eligible for any annual incentive payment or pro-rata portion earned
through the termination date. If Executive fails to provide one year written
notice, he shall be paid base salary through the last day worked, but shall not
be eligible for any bonus or annual incentive payments for any partial fiscal
year worked and may also be subject to damages and/or injunctive relief pursuant
to Section 7 below for breach of the Agreement.
b. Executive Termination Upon Change in Office and Duties. If during
the term hereof the Company does not continue Executive in the office of
Chairman and Chief Executive Officer or elect him to some other principal
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executive office satisfactory to Executive, Executive shall not be required to
continue to serve the Company in such modified office and may terminate this
Agreement upon written notice. Such termination will be treated as constructive
termination by the Company as if it were a "Company Termination Without Cause"
under Section 5(f) below.
c. Retirement. Executive's termination of the Agreement by reason of
retirement shall be treated as a voluntary termination by Executive pursuant to
Section 5(a) above.
d. Death of Executive. This Agreement shall terminate immediately in
the event of the death of Executive. Upon such termination, the Company shall
pay to Executive's legal representative as soon as practicable all accrued and
unpaid base salary and the pro-rated portion of any other compensation due under
Section 3 above. The Company shall also pay any benefits provided pursuant to
Section 3(d) that are payable pursuant to the terms of the applicable plan or
practice.
e. Disability of Executive. If Executive becomes Disabled (as defined
below) during the term of this Agreement, 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 Executive's
death, the Company shall pay to Executive (in lieu of its other obligations
hereunder) an annual disability benefit of $300,000, to be paid in arrears in
equal monthly installments. "Disabled" and "Disability" shall mean that
Executive has been totally disabled by injury or illness, mental or physical, as
a result of which he is prevented from further performance of his duties as
Chairman and Chief Executive Officer of the Company and that such disability is
likely to be permanent and continuous during the remainder of Executive's life.
Any required determination as to whether Executive has become Disabled shall, in
the event of a dispute, be made by the American Arbitration Association in
Phoenix, Arizona. Once a determination is made, either by agreement of the
parties or by the American Arbitration Association, that Executive is Disabled
or became Disabled during the term of the Agreement, the disability benefit
shall begin two months after such determination and shall be in addition to any
disability payments or benefits Executive may be entitled to under other Company
sponsored insurance plans made available to its employees generally. Prior to
the commencement of the disability benefit, the Company shall continue to pay
Executive as set forth in Section 3.
f. Company Termination Without Cause. The Company may terminate
Executive's employment as Chairman and Chief Executive Officer of the Company,
this Agreement and Executive's employment at any time, without cause and without
prior notice. Upon any such termination, the Company shall engage Executive as a
consultant for the Company pursuant to the terms of Section 6 below for a period
of twenty-four (24) months following such termination.
g. Company Termination With Cause. The Company may terminate this
Agreement and Executive's employment as Chairman and Chief Executive Officer
without notice for cause including, but not limited to, Executive'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. Upon such termination (and within thirty days thereafter) Company
will pay to Executive any compensation due prorated to the date of termination
pursuant to Section 3(a) and 3(b) above.
h. Executive Termination Upon Change in Control. Upon a Change of
Control (as defined in Exhibit B hereto) during the term of the Agreement, the
provisions of Exhibit B hereto shall apply.
i. Resignation as Director. It is contemplated that at all times during
the term of this Agreement that Executive shall continue to serve as a member of
the Company's Board of Directors. Upon any termination of this Agreement,
Executive agrees that he shall immediately submit his written resignation as a
member of the Board of Directors of the Company, which may choose to either
accept or reject such resignation in its discretion.
6. OPTION TO ENGAGE EXECUTIVE AS CONSULTANT
a. Company Election. The Company shall have the option to engage
Executive 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 Executive's employment with the Company (but up to twelve (12) consecutive
months after the events described in Sections 5(a) or 5(c)). If the Company
elects to exercise such option, it shall so notify Executive in writing within
ten (10) days after such termination. The consulting engagement shall commence
three (3) days after the giving of such notice or at such other time as mutually
agreed.
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b. Purpose. The purpose of the consulting engagement shall be to allow
for the orderly transition of Executive's duties to a successor. Executive's
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. Compensation as Consultant. During any consulting engagement,
Executive 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
salary and incentive compensation paid to Executive by the Company in any one
fiscal year during the three fiscal years most recently completed prior to
beginning of the consulting engagement. In addition, during such consulting
engagement, Executive 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. Consultant Obligations. During any such consulting engagement,
Executive shall observe and be bound by each of the covenants set forth in
Section 4 of this Agreement and Executive acknowledges that in the event of his
violation of such covenants the Company shall be entitled to the relief
described in Section 7 of this Agreement.
x. Xxxxxxxxx Offset. If Executive is engaged as a consultant for any
reason following the termination of this Agreement or his employment with the
Company, the amount of compensation received as a consultant shall offset the
Company's monetary obligations to Executive, if any, under Sections 3 and 5 of
this Agreement or any Company severance policy for employees generally that is
then in effect.
7. SPECIFIC PERFORMANCE
Executive acknowledges that (a) the services to be rendered under this
Agreement and the obligations of the Executive assumed herein are of a special,
unique and extraordinary character, (b) it would be difficult or impossible to
replace such services and obligations; (c) the Company, its subsidiaries and
affiliates will be irreparably damaged if the provisions hereof are not
specifically enforced; and (d) the award of monetary damages will not adequately
protect the Company, its subsidiaries and affiliates in the event of a breach
hereof by Executive. As a result, the Executive agrees and consents that if he
violates any of the provisions of this Agreement the Company shall, without any
bond or other security being required and without the necessity of proving
monetary damages, be entitled to a temporary and/or permanent injunction to be
issued by a court of competent jurisdiction restraining Executive from
committing or continuing any violation of this Agreement, or any other
appropriate decree of specific performance. Such remedies shall not be exclusive
and shall be in addition to any other remedy the Company may have.
8. GOVERNING LAW
This Agreement shall be construed, interpreted and governed by the law of
the State of Arizona, without giving effect to Arizona principles regarding
conflict of laws.
9. MISCELLANEOUS PROVISIONS
a. Tax Withholding. Notwithstanding anything in this Agreement to the
contrary, the Company shall withhold from any amounts payable under this
Agreement all federal, state and local taxes and all other amounts relating to
tax or other payroll deductions as the Company may reasonably determine should
be withheld.
b. Consent to Arbitration. Except for the equitable relief provisions
set forth in Section 7, Company and Executive agree to arbitrate any controversy
of claim arising out of this Agreement or otherwise relating to Executive'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 attached hereto as Exhibit A.
c. Succession. This Agreement shall extend to and be binding upon
Executive, his legal representatives, heirs and distributes and upon the
Company, its successors and assigns.
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d. Entire Agreement. This Agreement, together with Exhibits A and B
hereto, contains the entire agreement of the parties with respect to its subject
matter and no waiver, modification or amendment of any of its provisions shall
be valid unless in writing and signed by both parties. This Agreement supercedes
the Prior Employment Agreement which is hereby canceled and is of no further
effect.
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e. Waiver of Breach. The waiver of 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.
f. Severability. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of June 29, 2002.
AVNET, INC. EXECUTIVE
By: /s/ Xxxxxxx Xxxxxxxx /s/ Xxx Xxxxxx
-------------------------- --------------------------
Xxxxxxx Xxxxxxxx Xxx Xxxxxx
Title: Senior Vice President
Date: September 20, 2002 Date: September 20, 2002
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EXHIBIT A
MUTUAL AGREEMENT TO ARBITRATE CLAIMS
I realize that differences may arise between Avnet, Inc. ("the Company") and me
during or following my engagement with the Company, and that those differences
may or may not be related to my employment or engagement as a consultant. 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 engagement by the Company as an employee or consultant (or
the termination of such engagement), 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 original, age,
marital status, medical condition, handicap or disability); claims for benefits
(except where any 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. 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 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
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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 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, as 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
writing signed by me and an officer of the Company that 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 SUBJECTS 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.
AVNET, INC.
By: _____________________________ _____________________________
Xxxxxxx Xxxxxxxx Xxx Xxxxxx
Title: Senior Vice President
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EXHIBIT B
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement") is made effective as of the
29th day of June 2002, between Avnet, Inc., a New York corporation with its
principal place of business at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
Arizona ("Avnet" or "the Company") and Xxx Xxxxxx (the "Officer"). Avnet and the
Officer are collectively referred to in this Agreement as "the Parties".
WHEREAS, the Officer holds the position of Chairman and Chief Executive Officer
with the Company; and
WHEREAS, the Parties wish to provide for certain payments to the Officer in the
event of a Change of Control of the Company and the subsequent termination of
the Officer's employment without cause or the Constructive Termination of the
Officer's employment, as those capitalized terms are defined below;
NOW, THEREFORE, the Parties agree as follows:
1. Definitions.
(a) "Change of Control" means the happening of any of the following
events:
(i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a
"Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 50% or more of
either (A) the then outstanding shares of common stock of the
Company or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors; provided, however,
that the following transactions shall not constitute a Change
of Control under this subsection (i): (w) any transaction that
is authorized by the Board of Directors of the Company as
constituted prior to the effective date of the transaction,
(x) any acquisition directly from the Company (excluding an
acquisition by virtue of the exercise of a conversation
privilege), (y) any acquisition by the Company, or (z) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any entity
controlled by the Company; or
(ii) individuals who, as of the effective date hereof, constitute
the Board of Directors of the Company (the "Incumbent Board")
cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a
director subsequent to the effective date hereof whose
election, or nomination for election by the Company's
stockholders, 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 Exchange Act) or other actual or
threatened solicitation of proxies or consents by or ion
behalf of a Person other than the Board; or
(iii) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the
Company.
(b) "Constructive Termination" means the happening of any of the
following events:
(i) a material diminution of Officer's responsibilities,
including, without limitation, title and reporting
relationship;
(ii) relocation of the Officer's office greater than 50 miles from
its location as of the effective date of this Agreement
without the consent of the Officer,
(iii) a material reduction in Officer's compensation and benefits.
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(c) The "Exchange Act" shall mean the 1934 Securities Exchange Act, as
amended.
2. Constructive Termination or Termination after Change of Control. If,
within 24 months following a Change of Control, the Company or its
successor terminates Officer's employment without cause or by Constructive
Termination, Officer will be paid, in lieu of any other rights under any
employment agreement between the Officer and the Company, in a lump sum
payment, an amount equal to 2.99 times the sum of (i) the Officer's annual
salary for the year in which such termination occurs and (ii) the
Officer's incentive compensation equal to the average of such incentive
compensation for the highest two of the last five full fiscal years. All
unvested stock options shall accelerate and vest in accordance with the
early vesting provisions under the applicable stock option plans and all
incentive stock program shares allocated but not yet delivered will be
accelerated so as to be immediately deliverable. Officer shall receive his
or her accrued and unpaid salary and any accrued and unpaid pro rata bonus
(assuming target payout) through the date of termination, and Officer will
continue to participate in the medical, dental, life, disability and
automobile benefits in which Officer is then participating for a period of
two years from the date of termination.
3. Excise Taxes. In the event that Officer is deemed to have received an
excess parachute payment (as such term is defined in Section 280G(b) of
the Internal Revenue Code of 1986, as amended (the "Code")) that is
subject to excise taxes ("Excise Taxes") imposed by Section 4999 of the
Code with respect to compensation paid to Officer pursuant to this
Agreement, the Company shall make an additional payment equal to the sum
of (i) all Excise Taxes payable by Officer plus (ii) any additional Excise
Tax or federal or state income taxes imposed with respect to such
payments.
4. Miscellaneous. This Agreement modifies any employment agreement between
Officer and the Company only with respect to such terms and conditions
that are specifically addressed in this Agreement. All other provisions of
any employment agreement between the Company and Officer shall remain in
full force and effect.
AVNET, INC. Officer
By: _____________________________ _____________________________
Xxxxxxx Xxxxxxxx Xxx Xxxxxx
Title: Senior Vice President
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