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EXHIBIT 99D
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement") is made effective as of the
1st day of March, 2001, 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 Xxxxx Xxxx (the "Officer"). Avnet and the
Officer are collectively referred to in this Agreement as "the Parties."
WHEREAS, the Officer holds the position of Senior Vice President 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 conversion 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
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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 on 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.
(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.
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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.
By /s/ Xxxxxxx Xxxxxxxx
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Its Senior VP & CFO
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Officer
/s/ Xxxxx X. Xxxx
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