EXHIBIT 10.39
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of this 19th day of
December, 1996, by and between CHS Electronics, Inc., a Florida corporation (the
"Company"), and Xxxxxxx Xxxxx (the "Executive").
RECITALS. Pursuant to a Stock Exchange Agreement dated as of the date
hereof (the "Purchase Agreement"), Xxxxx & Xxxxxx Computer GmbH, a German
limited liability company ("F&W") has been sold to the Company. Executive's
participation in the business of F&W is essential to F&W's success. The parties
wish to provide for the employment of the Executive by the Company from and
after the Closing Date (as defined in the Purchase Agreement), and to restrict
the ability of the Executive to compete with the Company, all on the terms and
conditions herein set forth.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. EMPLOYMENT
1.1 Subject to Section 3 below, the Company hereby employs Executive
for an initial term of three (3) years (the "Employment Term"), commencing as of
the Closing Date. The Employment Term shall thereafter automatically renew for
additional one (1) year periods unless terminated by either party upon 60 days
written notice period to such annual renewal date. Executive shall serve as
Managing Director (Geschaftsfuhrer) with power of sole representation
(Alleinvertretungsmacht) of F&W, and as a Vice President-Europe of the Company,
and shall perform such services and duties as are consistent with such
positions. Executive hereby accepts such employment. Executive shall report to
CHS's Chief Executive Officer ("CEO") and Board of Directors. Executive hereby
agrees that during the term of his employment hereunder, he shall devote his
full time to the diligent performance of his duties hereunder and shall not
engage in any venture or activity which materially interferes with Executive's
performance of his duties hereunder. Executive acknowledges that the Company's
CEO, or another executive of the Company, will also be appointed Managing
Director (Geschaftsfuhrer) of F&W with power of sole representation.
1.2 Executive acknowledges that the Company's CEO may request
Executive to direct other projects, primarily in the areas of new business
development in Europe, through acquisitions and development of new products,
services and lines of business (collectively, "Business Development").
Notwithstanding anything
to the contrary contained herein, if Executive, in his discretion, agrees to
accept Business Development duties as contemplated herein, such duties shall not
be deemed a diminution of Executive's position or authority for purposes of
Section 3.4 hereof.
1.3 LOCATION. Executive shall perform his duties from a location
outside the United States reasonably acceptable to the Company. None of the
Executive's duties hereunder will be performed in the United States.
1.4 EFFECTIVE DATE. Notwithstanding anything to the contrary set forth
herein, this Agreement shall be effective as of the Closing Date, and only if
the Closing (as defined in the Purchase Agreement) is consummated.
2. COMPENSATION AND BENEFITS. During the Employment Term, the
Company shall pay Executive the compensation and other amounts set forth below.
2.1 SALARY. The Company shall pay Executive a base salary ("Base
Salary") of U.S. $350,000 per year during the Employment Term, payable in
installations according to the Company's regular payroll practices and subject
to such deductions as may be required by law, and reduced by any compensation
paid directly to Executive by any direct or indirect subsidiary of the Company
(including F&W). At the discretion of the Board of Directors or the Compensation
Committee thereof, such Base Salary may be, at any time, increased, but shall in
no event be decreased. Effective upon an increase, the term "Base Salary" shall
be without further action modified to mean such increased amount. The Executive
shall also be entitled to such additional compensation, bonuses and benefits, if
any, as shall be determined from time to time by the Board of Directors, or the
Compensation Committee thereof, and/or as prescribed by any benefit or bonus
plan adopted thereby, in its sole authority and discretion, based upon the
performance of the Company and the Executive; provided, however, that the
Executive shall be entitled to a minimum annual bonus of $150,000.
2.2 BENEFITS. Executive shall receive: (i) reimbursement for
reasonable and necessary out-of-pocket expenses incurred in the performance of
his duties hereunder, including but not limited to travel and entertainment
expenses (such expenses shall be reimbursed by the Company, from time to time,
upon presentation of appropriate receipts therefor); (ii) 6 weeks paid vacation
each calendar year (or pro rata for a shorter period); and (iii) sick leave
benefits in accordance with the Company's policy for full-time senior executive
officers.
2.3 WELFARE BENEFITS. The Company shall obtain or shall continue in
force more shall reimburse the Executive for (or
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shall cause F&W to obtain or continue in force or reimburse the Executive for)
the same comprehensive major medical and hospitalization insurance coverages,
including dental coverages, either group or individual, for the Executive and
his spouse and minor children, and pension, disability and death benefits for
the Executive (collectively "F&W Benefits"), which benefits were provided to the
Executive by F&W pursuant to the policies listed in Schedule 2.3 hereto. The
Executive acknowledges that the F&W Benefits are provided to the Executive in
lieu of, and not in addition to, the life and disability insurance, and
retirement benefits, provided to the other executive officers of CHS.
2.4 WORKING FACILITIES. The Company shall furnish the Executive with
an office, a secretary and such other facilities outside the United States, and
support services, as are suitable to his position and adequate for the
performance of his duties hereunder.
2.5 FRINGE BENEFITS. The Executive shall entitled to other fringe
benefits in accordance with the plans, practices, programs and policies
maintained by the Company from time-to-time.
3. TERMINATION.
3.1 TERMINATION FOR CAUSE. Notwithstanding anything contained in this
Agreement to the contrary, the Executive's employment may be terminated by the
Company at any time for Cause. As used in this Agreement, "Cause" shall only
mean (i) subject to the following sentences, any action or omission of the
Executive which constitutes a willful and material breach of this Agreement
which is not cured or as to which diligent attempts to cure have not commenced
within 30 business days after receipt by Executive of notice of same, (ii)
fraud, embezzlement or misappropriation as against the Company, or (iii) the
conviction (from which no appeal can be taken) of Executive for any criminal act
which is a felony. Upon any determination by the Company's Board of Directors
that Cause exists under clause (i) of the preceding sentence, the Company shall
cause a special meeting of the Board to be called and held at a time mutually
convenient to the Board and Executive, but in no event later than 10 business
days after Executive's receipt of the notice contemplated by clause (i).
Executive shall have the right to appear before such special meeting of the
Board with legal counsel of his choosing to refute any determination of Cause
specified in such notice, and any termination of Executive's employment by
reason of such Cause determination shall not be effective until Executive is
afforded such opportunity to appear. Any termination for Cause pursuant to
clause (ii) or (iii) of the first sentence of this Section 3.1 shall be made in
writing to Executive, which notice shall set forth
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in detail all acts or omissions upon which the Company is relying for such
termination. Upon any termination pursuant to this Section 3.1, the Company
shall pay to the Executive any unpaid base Salary accrued through the effective
date of termination specified in such notice. Except as provided above, the
Company shall have no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of termination,
subject, however to the provisions of Section 2.2).
3.2 DISABILITY. Notwithstanding anything contained in this Agreement
to the contrary, the Company, buy written notice to the Executive, shall at all
times have the right to terminate this Agreement, and the Executive's employment
hereunder, if the Executive shall, as the result of mental or physical
incapacity, illness or disability, fail to perform his duties and
responsibilities provided for herein for a period or more than 180 days in any
12-month period ("Disability"). Upon termination pursuant to this Section 3.2,
the Company shall pay to the Executive any unpaid Base Salary accrued through
the effective date of termination, as well as a lump sum severance payment equal
to 12 months' Base Salary at the rate prevailing at such termination. Except as
provided above, the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however to the provisions of Section 2.2).
3.3 DEATH. In the event of the death of the Executive during his
employment hereunder, the Company shall pay to the personal representative of
the estate of the deceased Executive any unpaid Base Salary accrued through the
date of his death. Except as provided above, the Company shall have no further
liability hereunder (other than for reimbursement for reasonable business
expenses, incurred prior to the date of the Executive's death, subject, however,
to the provisions of Section 2.2).
3.4 GOOD REASON. The Executive's employment may be terminated by the
Executive for "Good Reason". For purposes of this Agreement, "Good Reason" shall
mean:
(i) the assignment of the Executive of any duties inconsistent in
any respect with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 1 of this Agreement, or any other action by the Company which results
in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive;
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(ii) any failure by the Company to comply with any of the
provisions of Section 2 of this Agreement, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iii) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(iv) any Change of Control (as defined hereafter) of the Company.
3.5 CHANGE OF CONTROL. For purposes of this Agreement, a "Change of
Control" shall mean:
(i) the acquisition (other than by or from the Company), at any
time after the date hereof, by any reason, entity or "group", within the meaning
of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934 (the
"Exchange Act"), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20/percent/ or more of either the then
oustanding shares of common stock or the combined voting power of the Company's
then outstanding voting securities entitled to vote generally in the election of
directors; or
(ii) if the individuals who, as of the date hereof, constitute
the Board of Directors of the Company (as of the date hereof the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board of
Directors of the Company, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
directors of the Company, as such terms are used in Rule 14a-11 or Regulation
14A promulgated under the Exchange Act) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or
(iii) approval by the shareholders of the Company of (A) a
reorganization, merger or consolidation with respect to which persons who were
the shareholders of the Company immediately prior to such reorganization, merger
or consolidation do not, immediately thereafter, own more than 50% of the
combined voting power of the then outstanding securities entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company, (B) a liquidation or dissolution of the
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Company, or (C) the sale of all or substantially all of the assets of the
Company; unless the approved reorganization, merger, consolidation, liquidation,
dissolution or sale is subsequently abandoned.
3.6 GOOD REASON; OTHER THAN FOR CAUSE OF DIABILITY. If,
during the Employment Term, the Company shall terminate the Executive's
employment for any reason other than Cause, death or Disability, or if the
Executive shall terminate his employment for Good Reason:
(i) the Company shall, subject to Section 3.7, pay to the
Executive in a lump sum in cash within 30 days after the effective date of such
termination (the "Date of Termination") the aggregate of the following amounts:
A. to the extent not theretofore paid, the Executive's Base
Salary through the Date of Termination.
B. the sum of (x) two and one-half (2-1/2) MULTIPLIED TIMES
the Executive's Base Salary, and (y) any bonus paid to the Executive during the
last full fiscal year prior to the Date of Termination MULTIPLIED TIMES a
fraction, the numerator of which is the number of days the Executive was
employed by the Company during the fiscal year of the Date of Termination and
the denominator of which is 365;
C. in the case of compensation previously deferred by the
Executive, all amounts previously deferred (together with any accrued interest
thereon) and not yet paid by the Company, and any accrued vacation pay not yet
paid by the Company; and
D. all other amounts accrued or earned by the Executive
through the Date of Termination and amounts otherwise owing under the then
existing plans and policies at the Company; and
(ii) for the remainder of the Employment Term, or such longer
period as any plan, program, practice or policy may provide, the Company shall
continue benefits to the Executive and/or the Executive's family at least equal
to those which would have been provided to them in accordance with the plans,
programs, practices and policies described in Section 2.4 of this Agreement if
the Executive's employment had not been terminated, including health, dental,
disability insurance and life insurance, in accordance with the most favorable
plans, practices, programs or policies of the Company and its subsidiaries
during the 180-day period immediately preceding the Date of Termination, or, if
more favorable to the Executive, as in effect at any time thereafter
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with respect to other key executives and their families and, for purposes of
eligibility for retiree benefits pursuant to such plans, practices, programs and
policies, the Executive shall be considered to have remained employed until the
end of the Employment Term and to have retired on the last day of such period.
3.7 CERTAIN REDUCTION OF PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would be nondeductible by the Company for
Federal income tax purposes because of Section 280G of the Code, then the
aggregate present value of amounts payable or distributable to or for the
benefit of the Executive pursuant to this Agreement (such payments or
distributions pursuant to this Agreement (such payments or distributions
pursuant to this Agreement are hereinafter referred to as "Agreement Payments")
shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount
expressed in present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be nondeductible by the
Company because of Section 280G of the Code. Anything to the contrary
notwithstanding, if the Reduced Amount is zero and it is determined further that
any Payment which is not an Agreement Payment would nevertheless be
nondeductible by the Company for Federal income tax purposes because of Section
280G of the Code, then the aggregate present value of Payments which are not
Agreement Payments shall also be reduced (but not below zero) to an amount
expressed in present value which maximizes the aggregate present value of
Payments without causing any Payment to be nondeductible by the Company because
of Section 280G of the Code. For purposes of this Section 3.7, present value
shall be determined in accordance with Section 280G(d) (4) of the Code.
(b) All determinations required to be made under this
Section 3.7 shall be made by the Company's independent public accountants (the
"Accounting Firm"), which shall provide detailed supporting calculations both to
the Company and the Executive within twenty (20) business days of the Date of
Termination or such earlier time as is requested by the Company and an opinion
to the Executive that he has substantial authority not to report any excise tax
on his Federal income tax return with respect to any Payments. Any such
determination by the Accounting Firm shall be binding upon the Company and the
Executive. The Executive shall determine which and how much of the Payments
shall be eliminated or reduced consistent with the requirements of this Section
3.7, provided that, if the Executive does not make such determination within ten
business days of the receipt of the calculations made by the Accounting Firm,
the Company shall elect
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which and how much of the Payments shall be eliminated or reduced consistent
with the requirements of this Section 3.7 and shall notify the Executive
promptly of such election. Within five business days thereafter, the Company
shall pay to or distribute to or for the benefit of the Executive such amounts
as are then due to the Executive under this Agreement. All fees and expenses of
the Accounting Firm incurred in connection with the determinations contemplated
by this Section 3.7 shall be borne by the Company.
(c) As a result of the uncertainty in the application of
Section 280G of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Payments will have been made by
the Company which should not have been made ("Overpayment") or that additional
Payments which will not have been made by the Company could have been made
("Underpayment"), in each case, consistent with the calculations required to be
made hereunder. In the event that the Accounting Firm, based upon the assertion
of a deficiency by the Ineternal Revenue Service against the Executive which the
Accounting Firm believes has a high profitability of success, determines that an
Overpayment has been made, any such Overpayment paid or distributed by the
Company to or for the benefit of, the Executive shall be treated to all purposes
as a loan AB INITIO to the Executive which the Executive shall repay to the
Company together with interest at the applicable federal rate provided for in
Section 7872(f) (2) of the Code; provided, however, that no such loan shall be
deemed to have been made and no amount shall be payable by the Employee to the
Company if and to the extent such deemed loan and payment would not either
reduce the amount on which the Executive is subject to tax under Section 1 and
Section 4999 of the Code or generate a refund of such taxes. In the event that
the Accounting Firm, based upon controlling precedent or other substantial
authority, determines that an Underpayment has occurred, any such Underpayment
shall be promptly paid by the Company to or for the benefit of the Executive
together with interest at the applicable federal rate provided for in Section
7872(f) (2) of the Code.
3.8 FULL SETTLEMENT. The Company's obligation to make
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any setoff, counterclaim, recoupment, defense
or other claim, right or action which the Company may have against the Executive
or others. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement.
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4. RESTRICTIVE COVENANTS.
4.1 NON-COMPETITION. During the Employment Term and for a period
of two (2) years following the termination of the Executive's employment
(including Executive's voluntary resignation or the expiration of the Term, but
specifically excluding a termination by the Company without Cause and a
termination by the Executive for Good Reason), Executive shall not, directly or
indirectly, engage in, or have any interest in any sole proprietorship,
partnership, corporation, business or any other person or entity (whether as an
employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise) that, directly or indirectly, engages in, competition
with the Company or any of its subsidiaries in any and all locations in which
the Company and/or any subsidiary conducts its business at the time Executive's
employment with the Company is terminated (the "Territory"), PROVIDED, HOWEVER,
that Executive may continue to hold Company securities and/or acquire, solely as
an investment, shares of capital stock or other equity securities of any
corporation which is traded on any national securities of any corporation which
is traded on any national securities exchange or are regularly quoted in the
over-the-counter market, so long as Executive does not control, acquire a
controlling interest in or become a member of a group which exercises direct or
indirect control of, more than five percent of any class of capital stock of
such corporation.
4.2 NONDISCLOSURE. During the Executive's employment hereunder
and following termination of the Executive's employment with the Company, for
any reason, Executive shall not divulge, communicate, use to the detriment of
the Company or for the benefit of any other person or persons, or misuse in any
way, any Confidential Information (as hereinafter defined) pertaining to the
Company or any subsidiary. Any Confidential Information or data previously or
hereafter acquired by the Executive with respect to the business of the Company
(which shall include, but not be limited to, information concerning the
financial condition, prospects, technology, customers, suppliers, partners,
methods of doing business and marketing and promotion of the products of the
Company or any subsidiary) shall be deemed a valuable, special and unique asset
of the Company that is received by the Executive in confidence and as a
fiduciary, and Executive shall remain a fiduciary to the Company with respect to
all of such information. For purposes of this Agreement "Confidential
Information" means information disclosed to the Executive or known by the
Executive as a consequence of or through his employment by the Company or any
subsidiary (including information conceived, originated, discovered or developed
by the Executive) prior to or after the data hereof, and not generally known,
about the Company, any subsidiary, or their business. Notwithstanding the
foregoing, nothing herein
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shall be deemed to restrict the Executive from disclosing Confidential
Information to the extent required by law.
4.3 NONSOLICITATION OF EMPLOYEES. During the Executive's
employment and for a period of one year following termination of the Executive's
employment with the Company, for any reason, Executive shall not directly or
indirectly, for himself or for any other person, firm, corporation, partnership,
association or other entity, attempt to employ or enter into any contractual
arrangement with any employee or former employee of the Company, unless such
employee or former employee has not been employed by the Company for a period in
excess of six months.
4.4 BOOKS AND RECORDS. All books, records, accounts and similar
repositories of Confidential Information of the Company, whether prepared by the
Executive or otherwise coming into the Executive's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company on termination of this Agreement or on the board's request at any time.
4.5 REASONABLE COVENANTS. Executive recognizes the importance of
the covenants contained in this Section 4 and acknowledges that, based on his
past experience and training as an executive of the Company, F&W and their
affiliates, the projected expansion of the Company's and its affiliates'
business, and the nature of his services to be provided under this Agreement,
the restrictions imposed herein are: (i) reasonable as to scope, time and area;
(ii) necessary for the protection of the Company's and its affiliates'
legitimate business interests, including without limitation, the Company's and
its affiliates' trade secrets, confidential business information, goodwill, and
relationships with customers and suppliers; and (iii) not unduly restrictive of
Executive's rights as an individual. Executive acknowledges and agrees that the
covenants contained in this Section 4 are essential elements of this Agreement
and that but for these covenants, the Company would not have entered into this
Agreement, and the Company would not have agreed to purchase F&W or enter into
the Purchase Agreement. Such covenants shall be construed as agreements
independent of any other provision of this Agreement. The existence of any claim
or cause of action against the Company by the Executive, whether predicated on
the Company's breach of this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of the covenants contained in this
Section 4.
4.6 INJUNCTIVE RELIEF. If Executive commits a breach or threatens
to commit a breach of any of the provisions of this Section 4, the Company shall
have the right and remedy, in addition to any others that may be available, at
law or in equity,
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to have the provisions of this Section 4 specifically enforced by any court
having equity jurisdiction, through injunctive or other relief, it being
acknowledged that any such breach or threatened breach will cause irreparable
injury to the Company, the amount of which will be difficult to determine, and
that money damages will not provide an adequate remedy to the Company.
4.7 REDUCTION IN SCOPE. If any covenant contained in this Section
4, or any part thereof, is hereafter construed to be invalid or unenforceable,
the same shall not affect the remainder of the covenants, which shall be given
full effect, without regard to the invalid portions, and any court having
jurisdiction shall have the power to reduce the duration, scope and/or area of
such covenant and, in its reduced form, said covenant shall then be enforceable.
4.8 SURVIVAL. The provisions of this Section 4 shall survive the
expiration and termination of this Agreement, and the termination of Executive's
employment hereunder, for any reason.
5. SUCCESSORS. This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
6. MISCELLANEOUS.
(a) MODIFICATION AND WAIVER. Any term or condition of this
Agreement may be waived at any time by the party hereto that is entitled to the
benefit thereof; provided, however, that any such waiver shall be in writing and
signed by the waiving party, and no such waiver of any breach or default
hereunder is to be implied from the omission of the other party to take any
action on account thereof. A waiver on one occasion shall not be deemed to be a
waiver of the same or of any other breach on a future occasion. This Agreement
may be modified or amended only by a writing signed by all of the parties
hereto.
(b) GOVERNING LAW. The validity and effect of this Agreement
shall be governed by and construed and enforced in accordance with the laws of
Florida, U.S.A. Any dispute, controversy or question of interpretation arising
under, out of, in connection with or in relation to this Agreement or any
amendments hereof, or any breach or default hereunder, shal be submitted to, and
determined and settled by, arbitration, in Miami, Florida, U.S.A., in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
including the International Arbitration Rules. Any award rendered therein shall
be final and
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binding on the parties thereto, and judgment may be entered thereon in any
court having jurisdiction thereof.
(c) TAX; WITHHOLDING. Executive shall be responsible for paying
all taxes (foreign and domestic) due by reason of the compensation and benefits
provided hereunder. The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes (foreign and domestic) as shall be
required to be withheld pursuant to any applicable law or regulation.
(d) SECTION CAPTIONS. Section and other captions contained in
this Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
(e) SEVERABILITY. Every provision of this Agreement is intended
to be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
(f) INTEGRATED AGREEMENT. This Agreement constitutes the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof, and supersedes any other employment agreements executed before
the date hereof, including, without limitation, the document attached to the
Purchase Agreement as Schedule 2.6. There are no agreements, understandings,
restrictions, representations or warranties among the parties other than those
set forth herein or herein provided for.
(g) INTERPRETATION. No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative drafted such provision. For purposes of this Agreement: "herein",
"hereby", "hereunder", "herewith", "hereafter" and "hereinafter" refer to this
Agreement in its entirety, and not to any particular subsection or paragraph.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which shal constitute one and the same
instrument.
(h) NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered by hand
delivery, or by facsimile (with
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confirmation of transmission), or upon the expiration of seven (7) days after
the date sent, if sent by Federal Express (or similar overnight courier
service), in each case addressed as follows:
If to the Executive: Mr. Xxxxxxx-Xxxxx
c/o Xxxxx & Xxxxxx Computer GmbH
Xxxxxxxxxxxx 00
00000 Xxxxxxxxxxxx
Germany
Telecopier: (00-000) 0000-000
If to the Company: c/o CHS Electronics, Inc.
0000 X. X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Toll, Chief
Financial Officer
Telecopier: (000) 000-0000
(in each case with a copy to counsel as set forth in the Purchase Agreement) or
to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by addressee.
IN WITNESS WHEREOF, the parties have executed this Agreement or
caused this Agreement to be duly executed by their duly authorized officers as
of the date first above written.
CHS ELECTRONICS, INC.
By: /s/ [illegible]
-------------------------------
Title: Secretary
/s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx
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Schedule 2.3
WELFARE BENEFITS
/bullet/ Pension entitlement (old age and disability) dated September 7, 1987,
from F&W for Xxxxxxx Xxxxx. Old age pension upon attaining the age of
65 = DM 5,000.00 monthly; in case of disability prior thereto, likewise
a pension of DM 5,000.00 monthly.
The foregoing pension entitlement was replaced by the current pension
entitlement dated March 24, 1994 with the following amendments: Old
age, disability and survivor's provision; old age pension upon
attaining the age of 65 = DM 10,000.00 monthly; in case of disability
prior thereto, DM 5,000.00 monthly; survivor's provision for his wife
DM 6,000.00 monthly.
To secure the pension entitlement, F&W - as policy holder - has entered
into a so-called employer's pension liability insurance with Iduna
Lebensversicherung for Xxxxxxx Xxxxx - as insured - with a coverage in
the amount of DM 800,000.00 in case of insured's death, due at the
latest upon expiration (October 1, 2027), or DM 4,666.67 monthly
pension and exempted from payment of premiums for the duration of any
disability of insured prior thereto, not exceeding the expiration of
the insurance (October 1, 2027). F&W shall pay a premium therefor of DM
1,765.34 monthly (currently).
/bullet/ Direct insurance (life insurance) for Xxxxxxx Xxxxx - as insured -
entered into with Iduna Lebensversicherung by F&W - as policyholder -
in the form of a company old age pension.
Coverage: DM 235,898.00 + surplus participation. Expiration of the
insurance: October 1, 2022. In case of death of insured, due at the
latest upon expiration - October 1, 2022.
Beneficiary: Insured - Xxxxxxx Xxxxx, but after attaining the age of
35, i.e., December 4, 1997, or in case of death thereafter, his wife or
heirs. Premium for the foregoing insurance is DM 3,000.00 annually to
be paid by F&W.
/bullet/ Health insurance/nursing care insurance for Xxxxxxx Xxxxx with Xxxxxxx
Xxxxxxxxxxxxxxxxxxx XX, X - 00000 Xxxxxxx.
Coverage: Medical outpatient and inpatient care, dental care, any
nursing care. Premium DM 642.70 monthly (currently), of which DM 67.50
monthly (currently) accrues
for nursing care insurance. The entire premium is payable by Xxxxxxx
Xxxxx.
/bullet/ Health insurance/nursing care insurance for his wife, Xxxxxxxxx Xxxxx,
with Xxxxx/Xxxx Xxxxxxxxxxxxxxxxxxx XX, X - 00000 Xxxxxxx.
Coverage: Medical outpatient and inpatient care, dental care, any
nursing care. Premium DM 849.87 monthly (currently), of which DM 67.50
monthly (currently) accrues for nursing care insurance. The entire
premium is payable by Xxxxxxx Xxxxx.
/bullet/ Health insurance/nursing care insurance for his children, Xxxxxxxxxx,
born December 6, 1994, and Xxxxx, born January 12, 1997, with
Xxxxx/Xxxx Xxxxxxxxxxxxxxxxxxx XX, X - 00000 Xxxxxxx.
Coverage: Medical outpatient and inpatient care, dental care. Premium
DM 195.52 monthly (currently) for Xxxxxxxxxx. Premium DM 150.40 monthly
(currently) for Xxxxx. The entire premium is payable by Xxxxxxx Xxxxx.
