1
Exhibit 10(w)
Non-Competition Agreement
[LOGO PIONEER STANDARD]
--------------------------------------------------------------------------------
NON-COMPETITION AGREEMENT
-------------------------
PIONEER STANDARD Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ELECTRONICS, INC. Position: Senior Vice President
FOR VALUABLE CONSIDERATION, in the form of executive benefit plans
introduced in fiscal year 2000 over and beyond entitlement, the receipt and
sufficiency of which are hereby acknowledged, the individual named above
("Employee") hereby agrees as follows:
1. POSITION. Pioneer-Standard Electronics, Inc. ("the Company") shall employ
Employee in the position set forth above, with duties and responsibilities to be
determined by the Company. The Company reserves the right to add to, subtract
from, or otherwise change these duties, and to reassign Employee or change
his/her title consistent with its business judgment of the best interests of the
Company.
Employee shall use his or her best efforts at all times to promote, protect, and
advance the best interests of the Company. Employee will devote his or her
entire business time and attention to the Company, and will not promote the
business or products of any other company or engage in any outside business
activity without the prior written consent of the Company during his or her
employment with the Company.
2. COMPENSATION. Employee shall be compensated as deemed appropriate by the
Company's management. His/her salary and/or incentive pay shall be reviewed
regularly and shall be subject to increases or decreases consistent with the
Company's assessments of performance, relative contribution, and/or the
particular business conditions of the Company. Employee shall be eligible as per
eligibility requirements and other plan provisions to participate in any and all
employee benefit plans made available from time to time to the Company's
employees.
3. DURATION. Employee may terminate this Agreement at any time and such
termination shall be effective on the date of his or her notice, unless
otherwise mutually agreed. Similarly, the Company has the right to terminate
this Agreement and Employee's employment at any time, with or without advance
notice or cause. Should the Company terminate the Employee's employment without
cause, the Company will continue to pay the employee monthly base salary, target
incentive and benefit coverage for twelve (12) months (the "severance
payments"). In the event that (1) employee's employment is terminated for cause
or (2) employee voluntarily resigns from employment with the company, then the
company shall have no obligation for severance payments under this provision.
Absolutely no one except the President and Chief Operating Officer of the
Company may change this "at will" relationship, and then only in writing.
Employee acknowledges that any reliance on any representations, oral or
otherwise, contrary to "at will" employment is unreasonable and shall not form
the basis for any actions or forbearances on his or her part.
4. NONDISCLOSURE. Employee agrees at all times to hold as secret and
confidential any and all knowledge, technical information, business information,
developments, trade secrets, know-how and confidences of the Company and of any
third party who has entrusted its own such information to the Company,
including, but not limited to, the following:
(a) any formula, pattern, device, plan, drawing, technical information,
blueprint, data, diagram, model, specification, computer program, process or
compilation of same which is, or is designed to be, used in the business of the
Company or results from its activities;
(b) all business plans and/or strategies, financial information, customer and
sales information, price lists, vendor information, cost information, and
personnel information; and
(c) ideas, inventions, discoveries, and improvements, whether or not patentable,
belonging to the Company or which Employee conceives or makes, alone or with
others, during or relating to his/her employment with the Company, and which
were made partially or wholly with the use of equipment, supplies, facilities or
information of the Company, or were developed partially or wholly on the
Company's time (collectively, "Confidential Information"). Employee agrees not
to use this Confidential Information for his/her own benefit or for the benefit
of others (except as Company duties may require) either during or after
employment with the Company without prior written consent from the Company.
Further, Employee agrees not to remove or aid in the removal from the premises
of the Company such Confidential Information or any property or material which
relates thereto. Unauthorized removal of Confidential Information will lead to
appropriate discipline, up to and including termination of employment.
2
Non-Competition Agreement
[LOGO PIONEER STANDARD]
--------------------------------------------------------------------------------
Upon Employee's separation from employment with the Company, Employee agrees to
return and deliver to the Company all notes, notebooks, drawings, blueprints,
customer and sales information, and all other Confidential Information, together
with copies, compilations, and summaries of same, which are in his/her
possession or under his/her control.
5. NONCOMPETITION. For purposes of this Agreement, "Noncompetition Period" shall
refer to the 2-year period commencing on the effective date of termination of
Employee's employment with the Company for any reason.
(a) VOLUNTARY TERMINATION AND TERMINATION FOR CAUSE. Employee agrees that, in
the event that he/she: (1) voluntarily resigns from employment with the Company;
or (2) is terminated for cause from employment with the Company, he/she will
not, without the prior written consent of the Company, either directly or
indirectly, in the geographical area in which the Company maintains offices,
sales agents, or otherwise conducts business, be employed by, own, manage,
operate or control, or participate, directly or indirectly, in the ownership,
management, operation, or control of, or be connected with (whether as a
director, officer, employee, partner, consultant, or otherwise), any business
which competes with the Company in the distribution of electronic parts,
components or systems (the "Noncompetition Obligation").
(b) TERMINATION WITHOUT CAUSE. In the event that Employee's employment is
terminated without cause, the Company shall have the option to pay to Employee
his regular base and target incentive salary consistent with regular payroll
practices (the "Noncompetition Payments") for all or any part of the
Noncompetition Period. If the Company elects to make Noncompetition Payments to
Employee, then Employee will be bound by the Noncompetition Obligation set forth
in Subparagraph A, above, for the duration of Noncompetition Payments. All
decision as to: (1) whether to make Noncompetition Payments to Employee; and (2)
the duration of the Noncompetition Payments, shall be within the sole discretion
of the Company, and will be communicated to Employee at the time of termination.
It is acknowledged and understood that any Noncompetition Payments made
hereunder are in addition to, and independent of, any Severance Payments under
Paragraph 3, above and constitutes adequate consideration for the Noncompetition
objectives set forth herein. It is further acknowledged and understood that any
Noncompetition Obligation arising under this Subparagraph shall be in addition
to any other obligations on the part of Employee under this Agreement, including
but not limited to, his/her nondisclosure and nonsolicitation obligations.
6. NONSOLICITATION/NONINTERFERENCE. Employee further agrees that he/she will not
at any time during the Noncompetition Period, without the prior written consent
of the Company, directly or indirectly solicit or induce, attempt to solicit or
induce, or aid or assist in the solicitation or inducement of any employee,
agent, other representative or associate of the Company, vendor, and/or supplier
to terminate his, her, or its relationship with the Company.
7. ACKNOWLEDGMENT. Employee specifically acknowledges that the covenants set
forth in paragraphs four (4), five (5), and six (6) hereof are reasonable and
necessary in view of the nature of the relationship between Employee and the
Company and Employee's access to the Company's Confidential Information in
regard to his/her employment with the Company. Employee warrants and represents
that, in the event that the restrictions set forth in these paragraphs become
operative, he/she will be able to engage in other activities for the purpose of
earning a livelihood. Employee acknowledges that any breach of any of these
paragraphs will cause the Company immediate irreparable harm and hereby consents
to injunctive relief for any actual or threatened breach. Should the Company
succeed in any regard in enforcing any of the restrictive covenants set forth,
the Employee agrees to pay all expenses and costs, including reasonable
attorneys' fees, incurred by the Company in any enforcement proceeding.
Employee acknowledges that the covenants of paragraphs four (4), five (5), and
six (6) hereof are of the essence of this Agreement. They shall be construed as
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of Employee against the Company, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of any of these covenants.
8. PREEMPTION IN THE EVENT OF CHANGE IN CONTROL. The parties acknowledge that,
concurrent with the execution of this Agreement, they are entering into a Change
of Control Agreement dated February 25, 2000. In the event of a "Change of
Control", and for the duration of the "Change of Control Period", as those terms
are defined in the Change of Control Agreement, the parties agree as follows:
(a) It is the intent of the parties that severance provisions under this
Agreement are superceded by those contained in the Change of Control Agreement.
Accordingly, the Employee acknowledges that he/she shall have no right or
entitlement to severance payments under Paragraph 3 of this Agreement, in the
event of a Change of Control. The exclusive financial obligations of the Company
during the Change of Control Period shall be
3
Non-Competition Agreement
[LOGO PIONEER STANDARD]
--------------------------------------------------------------------------------
those set forth in Section 3 of the Change of Control Agreement.
(b) In the event that Employee's employment terminates for any reason during the
Change in Control Period, then Paragraph 5 of this Agreement (Noncompetition)
shall be of no force or effect, and neither the Employee nor the Company shall
have any obligation thereunder.
(c) Except as expressly provided by this Paragraph 8, all other provisions of
this Agreement shall remain binding on the parties during any Change in Control
Period, and shall otherwise be unaffected by a Change in Control.
(d) Upon expiration or termination of any Change in Control Period, Paragraphs 3
and 5 of this Agreement shall be restored in full, and shall be fully binding
upon the parties.
9. REFORMATION OF AGREEMENT; SEVERABILITY. In the event that any of the
paragraph(s) and/or provision(s) of this Agreement shall be found by a court of
competent jurisdiction to be invalid or unenforceable as expressly written, such
court shall reform such paragraph(s) and/or provision(s) to the end that
Employee shall be subject to reasonable obligation(s) under the circumstances
enforceable by the Company.
Should Employee be found to have been in breach of his/her noncompete and/or
nonsolicitation/ noninterference obligations, the Court shall extend or revise
the applicable restraint(s) so as to afford the Company the full period of
restraint(s) contemplated by this Agreement.
In the event that any paragraph(s) or provision(s) of this Agreement is found to
be void or unenforceable to any extent for any reason, it is the agreed-upon
intent of the parties hereto that all remaining paragraphs and provisions of
this Agreement shall remain in full force and effect to the maximum extent
permitted and that this Agreement shall be enforceable as if such void or
unenforceable paragraph(s) and/or provision(s) had never been a part hereof.
10. DISCLOSURE OF THIS AGREEMENT. Employee shall deliver a copy of this
Agreement to each person, business, or entity with whom he/she seeks employment,
partnership, or other business association at any time within two (2) years of
separation from employment with the Company.
11. ENTIRE AGREEMENT. This Agreement supersedes and replaces any existing
agreement or understanding between Employee and the Company relating to the
subject matters addressed herein. Employee and the Company recognize and agree
that this is the entire agreement between them concerning the topics expressly
addressed herein. Any modification of this Agreement must be in writing signed
by both parties.
12. ASSIGNMENT. This Agreement shall inure to the benefit of, and shall be
binding as to, the Company, its affiliated and/or related businesses, as well as
to their successors and assigns.
13. GOVERNING LAW. This Agreement shall become effective as of the date set
forth below and shall be governed by, and contained in accordance with, the
internal, substantive laws of the State of Ohio. Employee agrees that the state
and federal courts located in the State of Ohio shall have jurisdiction in any
action, suit or proceeding against Employee based on or arising out of this
Agreement and Employee hereby: (a) submits to the personal jurisdiction of such
courts; (b) consents to service of process in connection with any action, suit
or proceeding against Employee; and (c) waives any other requirement (whether
imposed by statute, rule of court or otherwise) with respect to personal
jurisdiction, venue or service of process.
4
Non-Competition Agreement
[LOGO PIONEER STANDARD]
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, Employee, having read and fully understood each of the
foregoing provisions, and the Company have executed this Agreement as of this
25th day of February, 2000.
EMPLOYEE: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ACCEPTED BY PIONEER-STANDARD
------------------------ ELECTRONICS, INC.
(Print Name)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3/8/00 By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------- --------------------------------
(Signature) Name
Title:
--------------------------------
*Copy to be retained by Employee*