EXHIBIT 10B
AGREEMENT effective as of May 1, 2000 between AVNET, INC., a New York
corporation with a principal place of business at 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 ("Employer") and Xxxx Xxxxxx, having an office at, 0000
X. 00xx Xxxxxx Xxxxx, Xxxxxxx 00000 ("Employee").
W I T N E S S E T H
1. Employment, Salary, Benefits:
1.1 Employment. Employer agrees to employ Employee and Employee agrees to
accept employment upon the terms and conditions hereinafter set forth.
1.2 Term. Employee's employment shall commence on May 1, 2000 and subject to
earlier termination as provided in Section 2 below, shall continue for a
period of two (2) years (until April 30, 2002, the "Initial Term"). Unless
Employee provides Employer written notice at least thirty (30) days prior
to the expiration of the Initial Term advising Employer that Employee does
not intend to renew the Agreement as hereinafter described, then after May
1, 2002 such employment shall continue until terminated by either party
provided, however, that the party desiring to terminate the employment
gives written notice thereof to the other not less than one (1) year prior
to the date of actual termination of employment. By way of example, should
Employee desire not to renew after the Initial Term, such notice would
have to be given no later than March 31st, 2002. Thereafter (if not so
terminated by Employee at the end of the Initial Term), if either Employer
or Employee should desire to terminate the employment on June 15, 2003
such notice would have to be given not later than June 15, 2002.
1.3 Duties. Employee is hereby engaged in an executive capacity and shall
perform such duties for Employer, or Employer's subsidiaries, divisions
and operating units as may be assigned to him from time to time by the
Chief Executive Officer of Employer. Employee is currently engaged as
President of Hall-Xxxx Global Solutions, North America. If Employee is
elected an officer or a director of Employer or any subsidiary or division
thereof, he shall serve as such without additional compensation.
1.4 Compensation. For all services to be rendered by Employee and for all
covenants undertaken by him pursuant to the Agreement, Employer shall pay
and Employee shall accept such compensation (including base salary and
incentive compensation) as shall be agreed upon from time to time between
Employer and Employee. In the event Employee's employment hereunder is
terminated by the one (1) year notice provided for in Section 1.2 above
and Employer and Employee fail to agree upon compensation during all or
any portion of the one (1) year notice period prior to termination, then
Employee's compensation (base salary and incentive compensation) during
such portion of the notice period shall remain the same in cash amount as
was most recently agreed upon (or as resulted on an average basis for each
pay period from the formula most recently agreed upon); and upon such
termination (after a one-year notice) Employee shall not be entitled to
serverance payments under any Employer severance plan. In the alternative
event that at least 30 days prior to the end of the Initial Term Employee
notifies Employer that it
intends not to renew as described in 1.2 above, Employee shall effective
April 30, 2002 (the end of the Initial Term) revert to employee at will
status (with employment terminable at any time by either Employer or
Employee) and the provision in 1.2 above requiring a one-year notice shall
not apply; and upon a subsequent termination of employment, Employee shall
be entitled if otherwise eligible to payments under any then-applicable
Employer severance plan. Notwithstanding anything to the contrary, in the
event Employee's employment is terminated pursuant to 2.1, 2.2 or 2.3
below, then the one-year notice provided in 1.2 above shall not be
applicable and employee shall not be entitled to any severance pay
benefit.
1.5 Other Compensation on Termination. Upon termination of this Agreement,
Employee shall be entitled to receive only such compensation as had
accrued and was unpaid to the effective date of termination. If the
termination occurs other than at the end of a fiscal year of Employer, the
compensation payable to Employee (including base salary and incentive
compensation) shall bear the same ratio to a full fiscal year's
remuneration as the number of days for which employee shall be entitled to
remuneration bears to 365 days.
1.6 Additional Benefits. In addition to the compensation described in
Subsection 1.4, Employee shall be entitled to vacation, insurance,
retirement and other benefits (except for severance pay benefit which the
one-year termination notice described above is intended to replace) as are
afforded to personnel of Employer's United States based Computer Marketing
Group operating units generally and which are in effect from time to time.
It is understood that Employer does not by reason of this Agreement
obligate itself to provide any such benefits to such personnel. Employee
also participates in the Employer's Executive Officers' Supplemental Life
Insurance and Retirement Benefits Program (the "Program") pursuant to the
terms and conditions applicable to the Program.
2. Early Termination.
2.1 Employee's employment hereunder shall terminate, at Employee's option and
upon a thirty day written notice to Employer, in the event that at any
time during the term hereof the Employer's current Chief Executive
Officer, Xxx Xxxxxx vacates, for any reason whatsoever, the position of
Chief Executive Officer.
2.2 Death or Disability. Employee's employment hereunder shall terminate on
the date of Employee's death or upon Employee suffering mental or physical
injury, illness or incapacity which renders him unable to perform his
customary duties hereunder on a full-time basis for a period of 365
substantially consecutive days, on the 365th such day. The opinion of a
medical doctor licensed to practice in the State of Arizona (or such other
state wherein Employee then resides) and having Board certification in his
field of specialization or the receipt of or entitlement of Employee to
disability benefits under any policy of insurance provided or made
available by Employer or under Federal Social Security laws, shall be
conclusive evidence of such disability.
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2.3 Cause. Employee's employment hereunder may also be terminated by Employer
at any time prior to the expiration of the term hereof without notice for
cause, including, but not limited to, Employee'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.
3. Competitive Employment:
3.1 Full time. Employee shall devote his full time, best efforts, attention
and energies to the business and affairs of Employer and shall not, during
the term of his employment, be engaged in any other activity which, in the
sole judgment of Employer, will interfere with the performance of his
duties hereunder.
3.2 Non-Competition. While employed by Employer or any subsidiary, division or
operating unit of Employer, Employee shall not, without the written
consent of the Chief Executive Officer of Employer, directly or indirectly
(whether through his spouse, child or parent, other legal entity or
otherwise): own, manage, operate, join, control, participate in, invest
in, or otherwise be connected with, in any manner, whether as an officer,
director, employee, partner, investor, shareholder, consultant, lender or
otherwise, any business entity which is engaged in, or is in any way
related to or competitive with the business of Employer, provided,
however, notwithstanding the foregoing Employee shall not be prohibited
from owning, directly or indirectly, up to 5% of the outstanding equity
interests of any company or entity the stock or other equity interests of
which is publicly traded on a national securities exchange or on the
NASDAQ over-the-counter market.
3.3 Non-Solicitation. Employee further agrees that he will not, at any time
while employed by Employer or any subsidiary, division or operating unit
of Employer and for a period of one year after the termination of
employment with Employer, without the written consent of an officer
authorized to act in the matter by the Board of Directors of Employer,
directly or indirectly, on Employee's behalf or on behalf of any person or
entity, induce or attempt to induce any employee of Employer or any
subsidiary or affiliate of Employer (collectively the "Employer Group") or
any individual who was an employee of the Employer Group during the one
(1) year prior to the date of such inducement, to leave the employ of the
Employer Group or to become employed by any person other than members of
the Employer Group or offer or provide employment to any such employee.
4. Definitions:
The words and phrases set forth below shall have the meanings as
indicated:
4.1 Confidential Information. That confidential business information of the
Employer, whether or not discovered, developed, or known by Employee as a
consequence of his employment with Employer. Without limiting the
generality of the foregoing, Confidential Information shall include
information concerning customer identity, needs, buying practices and
patterns, sales and management techniques, employee effectiveness and
compensation information, supply and inventory techniques, manufacturing
processes
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and techniques, product design and configuration, market strategies,
profit and loss information, sources of supply, product cost, gross
margins, credit and other sales terms and conditions. Confidential
Information shall also include, but not be limited to, information
contained in Employer's manuals, memoranda, price lists, computer programs
(such as inventory control, billing, collection, etc.) and records,
whether or not designated, legended or otherwise identified by Employer as
Confidential Information.
4.2 Developments. Those inventions, discoveries, improvements, advances,
methods, practices and techniques, concepts and ideas, whether or not
patentabIe, relating to Employer's present and prospective activities and
products.
5. Developments, Confidential Information and Related Materials:
5.1 Assignment of Developments. Any and all Developments developed by Employee
(acting alone or in conjunction with others) during the period of
Employee's employment hereunder shall be conclusively presumed to have
been created for or on behalf of Employer (or Employer's subsidiary or
affiliate for which Employee is working) as part of Employee's obligations
to Employer hereunder. Such Developments shall be the property of and
belong to Employer (or Employer's subsidiary or affiliate for which
Employee is working) without the payment of consideration therefor in
addition to Employee's compensation hereunder, and Employee hereby
transfers, assigns and conveys all of Employee's right, title and interest
in any such Developments to Employer (or Employer's subsidiary or
affiliate for which Employee is working) and agrees to execute and deliver
any documents that Employer deems necessary to effect such transfer on the
demand of Employer.
5.2 Restrictions on Use and Disclosure. Employee agrees not to use or disclose
at any time after the date hereof, except with the prior written consent
of an officer authorized to act in the matter by the Board of Directors of
Employer, any Confidential Information which is or was obtained or
acquired by Employee while in the employ of Employer or any subsidiary or
affiliate of Employer, provided, however, that this provision shall not
preclude Employee from (i) the use or disclosure of such information which
presently is known generally to the public or which subsequently comes
into the public domain, other than by way of disclosure in violation of
this Agreement or in any other unauthorized fashion, or (ii) disclosure of
such information required by law or court order, provided that prior to
such disclosure required by law or court order Employee will have given
Employer three (3) business days' written notice (or, if disclosure is
required to be made in less than three (3) business days, then such notice
shall be given as promptly as practicable after determination that
disclosure may be required) of the nature of the law or order requiring
disclosure and the disclosure to be made in accordance therewith.
5.3 Return of Documents. Upon termination of Employee's employment with
Employer, Employee shall forthwith deliver to the Chief Executive Officer
of Employer all documents, customer lists and related documents, price and
procedure manuals and guides, catalogs, records, notebooks and similar
repositories of or containing Confidential
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Information and/or Developments, including all copies then in his
possession or control whether prepared by him or others.
6. Miscellaneous:
6.1 Consent to Arbitration. Except for the equitable relief provisions set
forth in Section 6.2 below, Employer and Employee agree to arbitrate any
controversy or claim arising out of this Agreement or otherwise relating
to Employee'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 annexed hereto as Exhibit A.
6.2 Equitable Relief. Employee acknowledges that any material breach of any of
the provisions of Sections 3 and/or 5 would entail irreparable injury to
Employer's goodwill and jeopardize Employer's competitive position in the
marketplace or Confidential Information, or both, and that in addition to
Employer's other remedies, Employee consents and Employer shall be
entitled, as a matter of right, to an injunction issued by any court of
competent jurisdiction restraining any breach of Employee and/or those
with whom Employee is acting in concert and to other equitable relief to
prevent any such actual, intended or likely breach.
6.3 Survival. The provisions of Sections 3.2, 3.3, 4, 5, and 6 shall survive
the termination of Employee's employment hereunder.
6.4 Interpretation. If any court of competent jurisdiction or duly constituted
arbitration panel shall refuse to enforce any or all of the provisions
hereof because they are more extensive (whether as to geographic scope,
duration, activity, subject or otherwise) than is reasonable, it is
expressly understood and agreed that such provisions shall not be void,
but that for the purpose of such proceedings and in such jurisdiction, the
restrictions contained herein shall be deemed reduced or limited to the
extent necessary to permit enforcement of such provisions.
6.5 Succession. This Agreement shall extend to and be binding upon Employee,
his legal representatives, heirs and distributees and upon Employer, its
successors and assigns.
6.6 Entire Agreement. This Agreement and the Exhibits hereto contain the
entire agreement of the parties with respect to their subject matter and
no waiver, modification or change of any provisions hereof shall be valid
unless in writing and signed by the parties against whom such claimed
waiver, modification or change is sought to be enforced.
6.7 Waiver of Breach. The waiver of any 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.
6.8 Notices. All notices pursuant to this Agreement shall be in writing and
shall be given by registered or certified mail, or the equivalent, return
receipt requested, addressed to the
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parties hereto at the addresses set forth above, or to such address as may
hereafter be specified by notice in writing in the same manner by any
party or parties.
6.9 Headings. Except for the headings in Section 4, the headings of the
sections and subsections are inserted for convenience only and shall not
be deemed to constitute a part hereof or to affect the meaning thereof.
IN WITNESS WHEREOF, parties have executed this Agreement effective as of
the day and year first above written.
AVNET, INC.
By ____________________________
Title _________________________
________________________________
XXXX XXXXXX
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EXHIBIT A
MUTUAL AGREEMENT TO ARBITRATE CLAIMS
I recognize that differences may arise between Avnet, Inc. ("the
Company") and me during or following my employment with the Company, and that
those differences may or may not be related to my employment. 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
employment (or its termination), 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 origin, age,
marital status, medical condition, handicap or disability); claims for benefits
(except where an 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.
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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 the facts upon which such claims are based. The notice shall be
sent to the other party by 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 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
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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, at 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 a writing signed by me and an
officer of the Company which 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 SUBJENS 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.
EMPLOYEE AVNET, INC.
/s/ Xxxx Xxxxxx /s/ Xxx Xxxxxx
------------------------------------ ----------------------------------
Signature of Employee Signature of Authorized Company
Representative
Xxxx Xxxxxx Xxx Xxxxxx
------------------------------------ ----------------------------------
Print Name of Employee Title of Representative
May 1, 2000 As of May 1, 2000
------------------------------------ ----------------------------------
Date Date
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