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AGREEMENT effective as of October 13, 1997 between AVNET, INC., a New
York corporation with a principal place of business at 00 Xxxxxx Xxxx Xxxx,
Xxxxx Xxxx, Xxx Xxxx 00000, ("Employer") and Xxxxx Xxxxxx, residing at
("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 October 13, 1997 and
subject to earlier termination as provided herein, may be terminated on
July 2, 1999 by either party provided, however, that the party desiring
to terminate the employment on July 2, 1999 gives written notice thereof
to the other not later than one (1) year prior thereto -- namely, on or
before July 2, 1998. In the event neither Employer nor Employee gives
such written notice of termination then Employee's employment pursuant to
this Agreement shall continue thereafter until either Employee or
Employer shall terminate such employment upon at least one (1) year's
written notice of termination given to the other.
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 or President of Employer. Employee is currently
engaged as President of Employer's EMG-Asia operations. 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
for fiscal year 1998 (through June 26, 1998) and Employee shall accept
for such period compensation as set forth in the income plan attached as
Exhibit A. Compensation (including base salary and incentive
compensation) after June 26, 1998 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).
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1.5 Compensation on Termination. Upon termination of this Agreement, Employees
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 be
appropriately pro-rated.
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 EMG 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 shall be eligible for a
Company-provided automobile in accordance with the Company's program
therefor and shall be reimbursed by the Company for COBRA medical insurance
premiums during the first three (3) months of his employ. Employee also
shall participate 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 except, however, the Company
guarantees to Employee that he shall receive benefits under the Program or
directly from the Company as if he had been credited with 1-1/2 years of
service as an employee and as an officer of the Company for each year that
he is actually employed by the Company.
1.7 Stock Options. In the event of a Change of Control (as defined below)
results in the termination of this Agreement and of Employee's employment
with the Company, the Company shall pay to Employee upon such termination
cash compensation for all Company stock options granted to Employee but not
yet vested. The amount of such compensation shall be based on the
difference between the xxxxx xxxxx of such stock options and the average
price of the Company stock on the date of termination times the number of
option shares not yet vested.
2. EARLY TERMINATION
2.1 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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2.2 Cause. Employee's employment hereunder may also be terminated by Employer
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 President or 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 meaning 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
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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 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
patentable, relating to Employer's present and prospective activities and
products.
4.3 Change of Control. The majority of the members of the Board of Directors of
the Company being elected for the first time by any single person, entity
or group which owns or controls voting rights to a majority of the
Company's then outstanding shares of stock.
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
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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 President or 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
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 B.
6.2 Equitable Relief. Employee acknowledges that any material breach of any of
the provisions of Section 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
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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 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: /s/ Xxx Xxxxxx
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Title: President
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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EXHIBIT A
[AVNET LOGO] FY '98 INCOME PLAN
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GROUP/DIVISION: AVNET, INC. EMPLOYEE NAME: Xxxxx Xxxxxx
JOB TITLE: PRESIDENT, AVNET EMG-ASIA LOC (CITY, STATE):
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EMP NO. SSN: HIRE DATE: EFF DATE:
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CURRENT CORP: BRANCH: DEPT: JOB CODE:
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NEW CORP: BRANCH: DEPT: JOB CODE:
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CURRENT HOURLY RATE: RATE CODE: CAR ALLOWANCE (BI-WEEKLY):
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NEW HOURLY RATE: RATE CODE: CAR ALLOWANCE (BI-WEEKLY):
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BASE SALARY: $325,000
INCENTIVE: Avnet EMG Worldwide Electronic Components NIBT $: + $150,000
(Avnet EMG Worldwide less CMG) ----------
TARGET INCOME: = $475,000
==========
Note: Base salary, incentive and target income will all be prorated for the
portion of the fiscal year Xx. Xxxxxx is employed by the Company.
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COMMENTS: Incentive to be paid at the higher of actual or guaranteed at
$150,000 for all of FY'98.
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FY'98 NIST Objective: NIBT Multiplier #1 For NIBT dollars up to objective
$336,606,000 .0005338
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FY98 multiplier based on FY97 actual NIBT of NIBT Multiplier #2 For NIBT dollars over objective
$281,027,175 .001068
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Date Prepared: August 14, 1997
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TARGET INCOME
This is your target income for FY'98 based on achievement of business plan and
area of responsibility objectives.
BASE SALARY
That portion of the income plan which is a salary paid bi-weekly.
AVNET EMG WORLDWIDE ELECTRONIC COMPONENTS NET INCOME BEFORE TAX DOLLAR
INCENTIVE (Avnet EMG Worldwide NIBT less CMG NIBT)
For FY'98, the Net Income Before Tax (NIBT) Dollar multiplier (#1 on the first
page) with which your incentive compensation will be calculated is based on the
FY'97 NIBT Dollar actual performance for Avnet EMG Worldwide Electronic
Components. You will be paid this multiplier on all NIBT dollars generated in
FY'98 up to the FY'98 objective. Should the actual NIBT dollars generated in FY
'98 exceed the FY'98 NIBT Objective, you will be paid a multiplier (#2) that is
double the standard multiplier for all NIBT dollars generated above the FY'98
NIBT Objective. The NIBT Objective and multipliers #1 and #2 are shown on the
front page of this Income Plan. Your incentive will be calculated monthly and
paid one month in arrears. SPECIAL NOTE: During FY'98 your incentive
compensation will be paid at the guarantee or at the actual result, whichever
amount is greater.
Avnet reserves the right, based on business conditions, to reestablish budgets
and corresponding incentive multipliers. If for any reason your employment with
Avnet should terminate before the end of FY'98, your total compensation will
be that amount actually earned up to your last day of employment based upon
actual product shipments through your last day of employment. No commission
will be paid on orders remaining in the backlog on your termination date,
whether or not you obtained such orders.
This Target Income Plan describes how your compensation will be computed. A
Target Income Plan is not an employment agreement. Your employment at Avnet is
at-will, and therefore, your employment and compensation can be terminated,
with or without cause, and with or without notice, at any time, at your option
or at Avnet's option. This at-will employment relationship will remain in
effect throughout your employment with Avnet, or any of its subsidiary or
affiliated companies, unless it is modified by a specific, express written
employment contract for a specified term, which is signed by the Chairman, CEO
or the President of Avnet and you. This at-will relationship may not be
modified by any oral or implied agreement. These statements about the at-will
nature of employment constitute the complete understanding between Avnet and
you regarding this subject. If at any time you have questions regarding your
Target Income Plan, feel free to discuss them with your management.
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EXHIBIT B
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.
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.
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REQUIRED NOTICE OF ALL CLAIMS AND STATUTE OF LIMITATIONS
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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 of 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
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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 experts, and copies of all exhibits intended
to be used at the arbitration.
SUBPOENAS
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Each party shall have the right to subpoena witnesses and documents for the
arbitration.
ARBITRATION PROCEDURES
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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 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
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Panel shall have the authority to entertain a motion to dismiss and/or a motion
for summary judgement 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.
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.
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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.
EMPLOYEE AVNET, INC.
/s/ Xxxxx Xxxxxx /s/ Xxx Xxxxxx
------------------------ ------------------------
Signature of Employee Signature of Authorized Company
Representative
Xxxxx Xxxxxx President
------------------------ ------------------------
Print Name of Employee Title of Representative
12-4-97 12-18-97
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Date Date
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