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EXHIBIT 2.5
AGREEMENT effective as of March 21, 2001 between Avnet, Inc., a New
York corporation with a principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Employer") and ▇▇▇▇▇ ▇. ▇▇▇▇▇, having an office at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Employee"). Employer intends to enter into
an Agreement and Plan of Merger ("Merger Agreement") among Employer, Alpha
Acquisition Corp. ("Buyer") and Kent Electronics Corporation, a Texas
corporation ("Company") to be dated the date hereof whereby Employer's
subsidiary Buyer is to be merged (the "Merger") with and into Company, with
Company (as the surviving corporation of the Merger) to become a wholly-owned
subsidiary of Employer. Subject to and effective upon the Closing of the Merger
Agreement, this Agreement will supersede and replace all previous employment
agreements and employment-related arrangements between Company and Employee,
except as set forth in Subsection 6.6.
W I T N E S S E T H :
1. Employment, Salary, Benefits:
1.1 Employment. Subject to the Closing of the Merger Agreement,
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 pursuant to this Agreement shall
commence at the Effective Time of the Merger and, subject to
earlier termination as provided herein, may be terminated on
the date which is two years after the Effective Time (the
"Initial Term") by either party provided, however, that the
party desiring to terminate the employment on such date gives
written notice thereof to the other not later than one (1)
year prior thereto. 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 prior written
notice 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 of
Employer. Employee is intended to be engaged at the
commencement of this Agreement as President of the IP&E
division of Electronics Marketing Americas. 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 compensation as
set forth in the income plan (including base salary and
incentive compensation) as agreed upon from time to time
between Employer and Employee, provided that the parties agree
that Employee's base salary at commencement shall not be less
than $350,000 per annum and incentive compensation not less
than $250,000. In the event Employee's employment hereunder is
terminated by the one (1) year notice provided for in Section
1.2 above
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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).
1.5 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. Upon termination of this
Agreement by Employer without cause prior to the end of the
two year Initial Term described in Subsection 1.2, Employee
shall continue to receive payment of base salary and incentive
compensation and continued Employer-paid participation in
medical and life insurance benefits throughout the remainder
of the Initial Term.
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 Electronics 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.
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 capacity 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 Texas (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.
2.2 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.
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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 entity
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 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,
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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.
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 Information and/or Developments,
including all copies then in his possession or control whether
prepared by him or others.
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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 to, 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 Exhibit A (Mutual
Agreement to Arbitrate Claims) 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. This Agreement supersedes and replaces all
previous employment agreements and employment-related
arrangements between Employee and Company, which Employee
hereby agrees are terminated as of and subject to the
occurrence of the Effective Time of the Merger except (i) that
certain Severance Agreement by and between Company and
Employee dated November 10, 1998, (ii) all stock options
granted to Employee by Company, and (iii) that certain
Executive Health Care Benefits and Consulting Agreement
between Company and Employee dated October 19, 2000.
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
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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
addresses 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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title Senior VP & CFO
/s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
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EXHIBIT A
MUTUAL AGREEMENT TO ARBITRATE CLAIMS
I recognize that differences may arise between [Alpha], 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
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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 Chief Executive Officer 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 order, 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 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
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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 AND REVOCATION
This Agreement to arbitrate shall survive the termination of my
employment. It can only be revoked or modified in 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
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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 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.
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Signature of Employee Signature of Authorized Company
Representative
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Print Name of Employee Title of Representative
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Date Date
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