EXHIBIT 10.13
NU HORIZONS ELECTRONICS CORP.
AGREEMENT DATED SEPTEMBER 22, 1995 BETWEEN THE COMPANY AND XXXX XXXXXXX
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AGREEMENT made as of the 22nd day of September, 1995 by and between NU
HORIZONS ELECTRONICS CORP. a Delaware corporation (hereinafter called the
"Company") and XXXX XXXXXXX, residing at 00 Xxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxx
Xxxx 00000 (hereinafter called the "Employee").
WITNESSETH:
WHEREAS, the Company desires to continue to employ the Employee, and
the Company acknowledges that its entering into this agreement is a condition to
the Employee's willingness to continue such employment; and
WHEREAS, Employee desires to continue to be employed by the Company,
and the Employee acknowledges that his entering into this agreement is a
condition to the Company's willingness to continue such employment;
NOW, THEREFORE, it is agreed as follows:
1. Prior Agreements Superseded. This Agreement supersedes any
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employment or consulting agreements, oral or written, entered into between
Employee and the Company prior to the date of this Agreement.
2. Confidential Information. Employee recognizes and acknowledges
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that confidential information of various kinds, including information with
respect to the properties, customers and vendors, as they may exist from time to
time, of the Company are valuable, special and unique assets of its business.
Accordingly, Employee will not, during or after the term of this Agreement,
except in the performance of his services hereunder or with the consent of the
Company, disclose any such confidential information to any individual or entity
for any reason or purpose whatsoever and will not use any such confidential
information for his own benefit. The provisions of this paragraph 2 will not
apply to information available in trade or other publications, information known
to Employee at the time he entered the employ of the Company, and information
which presently is or shall become available without committing a tortious act.
3. Non-Competition; Proprietary Information; Property. (a) Employee
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agrees that, during the term of this Agreement, he will not, without the prior
written approval of the Company, directly or indirectly, through any other
individual or entity, (i) become an officer or employee of, or render any
services, including consulting services, to any competitor of the Company, (ii)
solicit, raid, entice or induce any customer of the company to cease purchasing
goods or services from the Company or to become a customer of any competitor of
the Company, and Employee will not approach any customer for any such purpose or
authorize the taking of any such actions by any other individuals or entity, or
(iii) solicit, raid, entice or induce any employee of the Company, and Employee
will not approach any such employee for any such purpose or authorize the taking
of any such action by any other individual or entity. However, nothing
contained in this paragraph 3 shall be construed as preventing Employee from
investing his assets in such form or manner as will not require him to become an
officer or employee of, or render any services, including consulting services,
to any competitor of the Company.
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(b) Employee agrees that Employee will, at all times, promptly disclose to
the Company in such form and manner as the Company may reasonably require, any
inventions, improvements or procedural methodological innovations, programs,
methods, forms, systems, services, designs, marketing ideas, products or
processes (whether or not capable of being trademarked, copyrighted or patented)
conceived or developed or created by Employee during or in connection with
Employee's retention hereunder and which relate to the business of the Company
("Intellectual Property"). Employee agrees that all such Intellectual Property
shall be the sole property of the Company, and hereby assigns, conveys and
transfers to the Company all of the Employee's right, title and interest therein
to the Company. Employee further agrees that Employee will execute such
instruments and perform such acts as may reasonably be requested by the Company
to transfer to an perfect in the Company all legally protectable rights in such
Intellectual Property.
(c) All written materials, records and documents made by Employee or
coming into Employee's possession during Employee's retention by the Company
concerning any products, processes or equipment manufactured, used developed,
investigated, purchased, sold or considered by the Company or otherwise
concerning the business or affairs of the Company shall be the sole property of
the Company, and upon termination of Employee's retention by the company or upon
request of the company during Employee's retention by the Company, Employee
shall promptly deliver the same to the Company. In addition, upon termination
of Employee's retention by the company, Employee will deliver to the company all
other Company property in Employee's possession or under Employee's control,
including, but not limited to, tangible property, financial statements,
marketing and sales data, customer and supplier lists, database information and
other documents, and any Company credit cards.
4. Change of Control. (a) In the event there shall be a Change in present
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Control of the company, as hereinafter defined, or in any person directly or
indirectly presently controlling the Company, as hereinafter defined, Employee
shall have the option, exercisable within six (6) months of his becoming aware
of such event, to terminate this Agreement forthwith. Upon such termination, or
if the employee's employment by the Company has been terminated by the Company
within six (6) months prior to such Change in Control, Employee shall have the
right to receive payment of an amount equal to three times the average of the
total compensation paid to the Employee during the immediately preceding five
(5) full fiscal years, less $1.00. Such amount shall be paid at the time and in
the manner in which the Company regularly pays its executive officers.
(b) For purposes of the Agreement, a Change in Control of the Company,
or in any person directly or indirectly controlling the Company, shall mean:
(i) a Change in Control as such term is presently defined in Regulation
240.12b-2 under the Securities and Exchange Act of 1934 ("Exchange Act"); or
(ii) if 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 twenty percent (20%) of
the Voting power of the Company's then outstanding securities; or
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(iii) if during any period of two (2) consecutive years during the term of
this Agreement, individuals who at the beginning of such period constitute the
Board of Directors cease for any reason to constitute at least a majority
thereof, unless the election of each director who is not a director at the
beginning of such period has been approved in advance by directors representing
at least two-thirds (2/3) of the directors then in office who were directors at
the beginning of the period.
5. Consolidation or Merger. In the event of any consolidation or merger
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of the Company into or with any other corporation during the term of the
Agreement, or the sale of all or substantially all of the assets of the company
to another corporation, person or entity during the term of this Agreement, such
successor corporation shall assume this Agreement and become obligated to
perform all of the terms and provisions hereof applicable to the Company, and
Employee's obligations hereunder shall continue in favor of such successor
corporation.
6. Notices. Any notice to be given to the Company hereunder shall be
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deemed sufficient if addressed to the Company in writing and delivered or
mailed by certified or registered mail to its offices at 0000 Xxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000, or such other address as the
Company may hereafter designate. Any notice to be given to Employee
hereunder shall be delivered or mailed by certified or registered mail to
him at: 00 Xxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 or such other
address as he may hereafter designate.
7. Successors and Assigns. This agreement shall be binding upon and inure
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to the benefit of the successors and assignees of the Company, and unless
clearly inapplicable, all references herein to the Company shall be deemed
to include any such successor. In addition, this Agreement shall be
binding upon and inure to the benefit of the Employee and his heirs,
executors, legal representatives and assigns; provided, however that the
obligations of Employee hereunder may not be delegated without the prior
written approval of the Board of Directors of the Company.
8. Amendments. This Agreement may not be altered, modified, amended or
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terminated except by a written instrument signed by each of the parties
hereto.
9. Applicable Law. This Agreement shall be governed by, construed and
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enforced in accordance with the laws of the State of New York, without
regard to conflicts of laws.
10. No Right to Employment. This Agreement shall not be construed to grant
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to the Employee any right to continue to be employed by the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
NU HORIZONS ELECTRONICS CORP.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President and
Chief Executive Officer
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Vice President-Finance
and Chief Financial Officer
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