THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
THIRD
AMENDMENT TO EMPLOYMENT AGREEMENT
This
third amendment to employment agreement is made this 28th day of
April, 2010 effective as of the 3rd day of
May, 2010 (the “Effective Date”) by and between NU HORIZONS ELECTRONICS CORP., a
Delaware corporation (the “Company”) and XXXXXXX XXXXXXXX, residing
at __________ (the “Employee”).
WITNESSETH
WHEREAS,
the Company and the Employee are parties to an Employment Agreement dated as of
September 13, 1996, as amended by the Amendment to Employment Agreement dated as
of March 28, 2005 and by the Second Amendment to Employment Agreement dated as
May 8, 2009 (collectively, the “Employment Agreement”); and
WHEREAS,
the Company and the Employee desire to further amend the Employment Agreement in
accordance with the terms hereof (“Third Amendment”).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto do hereby agree as
follows:
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1.
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Section
5(a)(iii) of the Employment Agreement is hereby deleted in its entirety
and the following is substituted
therefore:
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(iii) Annual Bonus
Compensation. In addition to his base salary as in effect for
any fiscal year (the “Base Salary”), Employee shall be entitled to an incentive
bonus for each such fiscal year, based upon Employee’s performance relative to
specified quantitative goals (the “Quantitative Bonus”) and qualitative goals
(the “Qualitative Bonus” and, together with the Quantitative Bonus, the “Total
Bonus”) to be mutually agreed, which goals will be approved by the Board and the
Compensation Committee of the Board in respect of each such fiscal year. The
Total Bonus shall be paid to Employee no later than 30 days following the
delivery to the Company by its independent registered public accounting firm of
such firm’s signed, final report with respect to the Company’s consolidated
financial statements for the applicable completed fiscal year. In order for any
Bonus to be earned and received by Employee, Employee must be employed and in
good standing or providing consulting services to the Company on the last day of
the relevant fiscal year.
(A)Quantitative Bonus:
The Quantitative Bonus, if any, will be in amount up to 70% of the Employee’s
Base Salary (the “Maximum Quantitative Bonus”). The amount of the
Quantitative Bonus will be calculated based on the Company reaching a minimum
achievement goal (the “Minimum”), at which level Employee shall begin to have
the right to receive a portion of such Quantitative Bonus, a target achievement
goal (the “Target”), where Employee shall have the right to receive one-half of
the Maximum Quantitative Bonus, and an overachievement goal (the “Maximum”),
where Employee shall have the right to receive the maximum incentive amount of
the Maximum Quantitative Bonus. The actual incentive payment amount
will be calculated, based on actual results attained, prorated on a
straight-line basis between the Minimum and the Target, or the Target and the
Maximum, whichever is applicable.
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(x)
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For
the Company’s fiscal year ending February 28, 2011 (“Fiscal 2011”), the
Quantitative Bonus will be calculated based on the Company’s achievement
of certain levels of annual consolidated income before provision for
income tax, excluding (i) in Fiscal 2011 any reduction for (1) stock
option expense for the aggregate of 400,000 stock options awarded to
Employee and Xx. Xxxxxx Xxxxxx and (2) up to $200,000 in respect of
certain business expenses associated with the employment of Xx. Xxxxxx
Xxxx pursuant to his employment agreement of even date, including stock
option expense related to the grant of options and (ii) any unusual
item(s) to the extent that the Company’s Audit Committee determines that
it is appropriate for the Company to make a pro forma adjustment for such
item(s) in its press release reporting the financial results for Fiscal
2011(“Company Pre-Tax Income”). The Minimum (where zero incentive is earned) shall be
$0 Pre-Tax Income, the Target (where the Target incentive is earned) shall
be $1,000,000 Pre-Tax Income and the Maximum (where the Maximum
Quantitative Bonus is earned) shall be $5,250,000 Pre-Tax
Income. The Quantitative Bonus payable to Employee shall be
calculated, based on actual results reported by the Company in respect of
Fiscal 2011, prorated on a straight-line basis between the Minimum and the
Target, or the Target and the Maximum, whichever is
applicable.
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(B)Qualitative Bonus:
The Qualitative Bonus, if any, shall be in an amount up to 30% of the Employee’s
Base Salary (the “Maximum Qualitative Bonus”), with a target Qualitative Bonus
in an amount equal to one-half of the Maximum Qualitative Bonus. Commencing with
the fiscal year ending February 29, 2012, the Qualitative Bonus amount will be
such amount as the Board and the Compensation Committee shall determine in their
sole and absolute discretion.
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(x)
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Notwithstanding
the qualitative nature of the Qualitative Bonus, the Company and Employee
hereby agree that for Fiscal 2011 the Qualitative Bonus will be calculated
in the same manner as the Quantitative Bonus described in 5(a)(ii)(A),
above; except that the Qualitative Bonus will based on the achievement by
the Company’s subsidiary NIC Components Inc. and its subsidiaries
(collectively, “NIC”) of specified levels of annual consolidated income
before provision for income tax, excluding any unusual item(s) to the
extent that the Company’s Audit Committee determines that it is
appropriate for the Company to make a pro forma adjustment for such
item(s) in its press release reporting the financial results for Fiscal
2011 (“NIC Pre-Tax Income”). The NIC minimum achievement goal (where zero incentive is earned) shall be $1,750,000 NIC Pre-Tax
Income (the “NIC Minimum”), the NIC target achievement goal (where the
target Qualitative Bonus is earned) shall be $3,000,000 NIC Pre-Tax Income
(the “NIC Target”) and the NIC maximum achievement goal (where the maximum
Qualitative Bonus is earned) shall be $5,250,000 NIC Pre-Tax Income (the
“NIC Maximum”). The Qualitative Bonus payable to Employee in
Fiscal 2011 shall be calculated, based on actual results reported by NIC
in respect of Fiscal 2011, prorated on a straight-line basis between the
NIC Minimum and the NIC Target, or the NIC Target and the NIC Maximum,
whichever is applicable.
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2
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2.
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Paragraph
5(a) of the Employment Agreement is hereby amended to add a new subsection
(iv) thereof, as follows:
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(iv) Discretionary
Bonus. In addition to the Bonus described in Section
5(a)(iii), Employee may be eligible to receive bonuses on any occasion and in
any amount as the Compensation Committee shall determine in its sole
discretion.
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3.
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Paragraph
5 of the Employment Agreement is hereby amended to add a new section (b)
thereof, as follows:
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(b) Stock
Options. On the business day following the execution and
delivery of this Agreement, the Board will grant to Executive options to acquire
an aggregate 200,000 shares of the Company’s common stock (the “Stock Options”)
under the 2002 Key Employee Stock Incentive Plan and 2000 Key Employee Stock
Option Plan. The terms and conditions related to the Stock Options will be
determined by the Compensation Committee and set forth in the stock option
agreements granting such Stock Options.
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4.
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Except
as specifically amended by this Third Amendment, the Employment Agreement
shall remain in full force and effect in all respects as originally
executed and amended to date.
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5.
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This
Third Amendment may be executed in several counterparts, each of which
shall be deemed an original and all of which shall constitute one and the
same instrument. This Amendment shall be governed in all
respects, including validity, interpretation and effect, by the laws of
the State of New York, applicable to contracts made and to be performed
entirely in New York.
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3
IN
WITNESS WHEREOF, the parties have duly executed this Third Amendment as of the
first date written above.
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By:
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/s/
Xxxx Xxxxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxxxx
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Title:
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Executive
Vice President and
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Chief
Financial Officer
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/s/
Xxxxxxx Xxxxxxxx
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Xxxxxxx
Xxxxxxxx
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