EXHIBIT 10.1
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
This Amendment No. 2 to Employment Agreement (this "Amendment") is entered
into by and among Xxxxxx X. Xxxxxxxx ("Employee"), Xxxxxxx X. Xxxxxxxx and Kent
Electronics Corporation, a Texas corporation (the "Company"), as of November 10,
1998.
WHEREAS, Employee and the Company entered into the Employment Agreement
dated as of January 3, 1996 (as amended, the "Employment Agreement"),
WHEREAS, pursuant to an Amendment No. 1 to Employment Agreement dated as of
August 18, 1997, the Employment Agreement was amended and Xxxxxxx X. Xxxxxxxx
was added as a party thereto,
WHEREAS, capitalized terms not otherwise defined herein shall have the
meanings given to them in the Employment Agreement, and
WHEREAS, the parties to the Employment Agreement desire to amend the
Employment Agreement further to provide for certain benefits to Employee upon
the termination of Employee's employment by the Company following a Change in
Control,
NOW, THEREFORE, in order to encourage Employee to remain in the employ of
the Company beyond the minimum Term of Employment under the Employment
Agreement, and in consideration of Employee's past and anticipated future
service to the Company, the mutual agreements set forth herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. The parties hereby amend Section 3 of the Employment Agreement to read
in its entirety as follows:
3. Term. Subject to the provisions for earlier termination provided
herein, the term of this Agreement and the term of Employee's employment by
the Company shall continue uninterrupted until March 31, 2001 and
Employee's employment by the Company shall continue uninterrupted
thereafter on a month to month basis until termination by either party upon
at least thirty days' written notice to the other party ("Term of
Employment").
2. The parties hereby amend Section 4.1(b) of the Employment Agreement to
read in its entirety as follows:
(b) Upon a Change in Control (as defined below), the Company
shall establish a "rabbi trust" for the benefit of Employee into which
there shall be contributed by the Company cash in an amount sufficient
to satisfy the Company's obligations to pay the Employee the amounts
to which he is entitled under Section
6.1(d)(iii). Any instruments establishing such rabbi trust shall in
all respects be satisfactory in form and substance to Employee and his
counsel.
3. The parties hereby amend Section 6.1(d)(ii) of the Employment Agreement
to read in its entirety as follows:
(ii) If prior to a Change in Control Employee is discharged
without Just Cause or resigns for Good Reason, Employee, or his spouse,
estate or otherwise designated beneficiary, as the case may be, shall be
entitled to the following:
(1) a cash lump sum payment equal to all compensation and
benefits due Employee pursuant to Section 4.1 as of the date of discharge
or resignation, including the bonus for the period of his employment prior
to the discharge or resignation (all cash compensation to be based on
annual cash compensation of not less than $950,000 per year, irrespective
of the time at which such cash compensation is otherwise payable)
annualized on a reasonable basis acceptable to Employee; however, if at the
end of such year it is determined that Employee's annual compensation would
have been higher than the annualized amount used to calculate this payment,
the Company shall pay Employee an amount in a cash lump sum equal to a
proportionate share in the increase based on his period of employment
during the year in which Employee was discharged or resigned; plus
(2) a cash lump sum payment equal to the compensation pursuant to
Section 4.1 which would be received by Employee for the remainder of the
Term of Employment (using annual compensation of $950,000 per year or, if
higher, the highest annual amount of Employee's compensation or annualized
compensation calculated as described in Section 6(d)(ii)(1) in any year
(including the year in which Employee terminates) during which this
Agreement was in force). The entire lump sum amount shall be paid
concurrent with any discharge or within 3 business days of the date of any
resignation. Employee shall have no duty to mitigate or attempt to mitigate
his damages. Employee's other compensation and benefits under this
Agreement, including without limitation those provided pursuant to Sections
4.4 and 4.5, shall not be impaired or otherwise adversely affected by
termination of Employee's employment.
4. The parties hereby amend Section 6.1(d) of the Employment Agreement to
add the following new subsection 6.1(d)(iii), which shall read in its entirety
as follows:
(iii) If Employee's employment is terminated after a Change in
Control (even if for Just Cause or without Good Reason), Employee, or his
spouse, estate or otherwise designated beneficiary, as the case may be,
shall be entitled to the following:
(1) a cash lump sum payment equal to all the compensation and
benefits due Employee pursuant to Section 4.1 as of the date of discharge
or resignation, including the bonus for the period of his employment prior
to the discharge or resignation
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(all cash compensation to be based on annual cash compensation of not less
than $950,000 per year, irrespective of the time at which such cash
compensation is otherwise payable) annualized on a reasonable basis
acceptable to Employee; however, if at the end of such year it is
determined that Employee's annual compensation would have been higher than
the annualized amount used to calculate this payment, the Company shall pay
Employee an amount in a cash lump sum equal to a proportionate share in the
increase based on his period of employment during the year in which
Employee was discharged or resigned; plus
(2) a cash lump sum payment equal to the product of five times
the annual compensation pursuant to Section 4.1 which would be received by
Employee (using annual compensation of $950,000 per year or, if higher, the
highest annual amount of Employee's compensation or annualized compensation
calculated as described in Section 6(d)(iii)(1) in any year (including the
year in which Employee terminates) during which this Agreement was in
force). The entire lump sum amount shall be paid concurrent with any
discharge or within 3 business days of the date of any resignation.
Employee shall have no duty to mitigate or attempt to mitigate his damages.
Employee's other compensation and benefits under this Agreement, including
without limitation those provided pursuant to Sections 4.4 and 4.5, shall
not be impaired or otherwise adversely affected by termination of
Employee's employment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
XXXX ELECTRONICS CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Chief Operating Officer
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