Attached files
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10-K - ARROW ELECTRONICS INC | v172660_10k.htm |
EX-10.I - ARROW ELECTRONICS INC | v172660_ex10i.htm |
EX-10.K.V - ARROW ELECTRONICS INC | v172660_ex10kv.htm |
EX-10.K.VI - ARROW ELECTRONICS INC | v172660_ex10kvi.htm |
EX-21 - ARROW ELECTRONICS INC | v172660_ex21.htm |
EX-23 - ARROW ELECTRONICS INC | v172660_ex23.htm |
EX-32.I - ARROW ELECTRONICS INC | v172660_ex32i.htm |
EX-31.I - ARROW ELECTRONICS INC | v172660_ex31i.htm |
EX-31.II - ARROW ELECTRONICS INC | v172660_ex31ii.htm |
EX-32.II - ARROW ELECTRONICS INC | v172660_ex32ii.htm |
Exhibit
10(k)(vii)
Date
Name
Address
City,
State
Dear
___________:
Arrow
Electronics, Inc., a New York corporation (the "Company"), considers the
establishment and maintenance of a sound and vital management to be essential to
protecting and enhancing the best interests of the Company and its
shareholders. In this connection, the Company recognizes that, as is
the case with many publicly held corporations, the possibility of a change in
control may arise and that such possibility, and the uncertainty and questions
which it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its
shareholders. Accordingly, the Board of Directors of the Company (the
"Board") has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of members of the Company's
management to their assigned duties without distraction in circumstances arising
from the possibility of a change in control of the Company. In
particular, the Board believes it important, should the Company or its
shareholders receive a proposal for transfer of control of the Company, that you
be able to assess and advise the Board whether such proposal would be in the
best interests of the Company and its shareholders and to take such other action
regarding such proposal as the Board might determine to be appropriate, without
being influenced by the uncertainties of your own situation.
In order to induce you to remain in the
employ of the Company, this letter agreement, which has been approved by the
Board, sets forth the severance benefits which the Company agrees will be
provided to you in the event your employment with the Company terminates
subsequent to a "change of control" of the Company under the circumstances
described below.
1. Agreement to Provide
Services; Right to Terminate.
(i) Except
as otherwise provided in paragraph (ii) below, or as provided in that certain
Employment Agreement made as of _______________ by and between the
Company and you, the Company or you may terminate your employment at any time,
subject to the Company's providing the benefits hereinafter specified in
accordance with the terms hereof.
Exhibit
10(k)(vii)
(ii) In
the event a tender offer or exchange offer is made by a Person (as hereinafter
defined) for more than 30% of the combined voting power of the Company's
outstanding securities ordinarily having the right to vote at elections of
directors ("Voting Securities"), including shares of the Company's Common Stock,
par value $1 per share (the "Company Shares"), or in the event of any
solicitation of proxies or written consents not approved by the Board, you agree
that you will not leave the employ of the Company (other than as a result of
Disability or upon Retirement, as such terms are hereinafter defined) and will
render the services contemplated in the recitals to this Agreement until such
tender offer or exchange offer has been abandoned or terminated, such
solicitation of proxies has ended, or a change in control of the Company, as
defined in Section 3 hereof, has occurred, except as otherwise agreed in writing
by you and the Company. For purposes of this Agreement, the term
"Person" shall mean and include any individual, corporation, partnership, group,
association or other "person", as such term is used in Section 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), other than the Company, a
wholly owned subsidiary of the Company or any employee benefit plan(s) sponsored
by the Company.
2. Term of
Agreement. This Agreement shall commence on the date hereof
and shall continue in effect until _____________; provided, however, that
commencing on June 1, ________ and each June 1 thereafter, the term of this
Agreement shall automatically be extended for one additional year unless at
least 90 days prior to such June 1 date, the Company or you shall have given
notice that this Agreement shall not be extended; and provided, further, that
this Agreement shall continue in effect for a period of twenty-four (24) months
beyond the term provided herein if a change in control of the Company, as
defined in Section 3 hereof, shall have occurred during such
term. Notwithstanding anything in this Section 2 to the contrary,
this Agreement shall terminate if you or the Company terminate your employment
prior to a change in control of the Company, as defined in Section 3
hereof.
3. Change in
Control. For purposes of this Agreement, a "change in control"
of the Company shall mean either of the following: (a) any one person, or more
than one person acting as a group, acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such person or
persons) ownership of stock of the Company possessing 30 percent or more of the
total voting power of the stock of the Company, or (b) a majority of the members
of the Company’s Board of Directors is replaced during a 12-month period by
directors whose appointment or election is not endorsed by a majority of the
members of the Company’s Board of Directors before the date of the appointment
or election, in each case interpreted in accordance with section 409A of the
Internal Revenue Code of 1986, as amended and applicable Treasury regulations
(“409A”).
4. Termination Following Change
in Control. If any of the events described in Section 3 hereof
constituting a change in control of the Company shall have occurred, you shall
be entitled to the benefits provided in paragraphs (iii) and (iv) of Section 5
hereof upon the termination of your employment within twenty-four (24) months
after such event, unless such termination is (a) because of your death or
Disability, (b) by the Company for Cause or (c) by you other than for Good
Reason (as all such capitalized terms are hereinafter defined).
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Exhibit
10(k)(vii)
(i) Disability. Termination
by the Company of your employment based on "Disability" shall mean termination
because of your absence from your duties with the Company on a full time basis
for one hundred eighty (180) consecutive days as a result of your incapacity due
to physical or mental illness, unless you shall have returned to the full time
performance of your duties before the expiration of such 180-day
period.
(ii) Cause. Termination
by the Company of your employment for "Cause" shall mean termination upon (a)
the willful and continued failure by you to perform substantially your duties
with the Company (other than any such failure resulting from your incapacity due
to physical or mental illness) after a demand for substantial performance is
delivered to you by the Chairman of the Board or President of the Company which
specifically identifies the manner in which such executive believes that you
have not substantially performed your duties, or (b) the willful engaging by you
in illegal conduct which is materially and demonstrably injurious to the
Company. For purposes of this paragraph (ii), no act, or failure to
act, on your part shall be considered "willful" unless done, or omitted to be
done, by you in bad faith and without reasonable belief that your action or
omission was in, or not opposed to, the best interests of the
Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to
be done, by you in good faith and in the best interests of the
corporation. It is also expressly understood that your attention to
matters not directly related to the business of the Company shall not provide a
basis for termination for Cause so long as the Board has approved your
engagement in such activities. Notwithstanding the foregoing, you
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to you a copy of a resolution duly adopted by the
affirmative vote of not less than three quarters of the entire membership of the
Board at a meeting of the Board called and held for the purpose (after
reasonable notice to you and an opportunity for you, together with your counsel,
to be heard before the Board), finding that in the good faith opinion of the
Board you were guilty of the conduct set forth above in (a) or (b) of this
paragraph (ii) and specifying the particulars thereof in detail.
(iii) Good
Reason. Termination by you of your employment for "Good
Reason" shall mean termination based on any action (or omission) that
constitutes one or more of the following:
(A) a material diminution in your
compensation, based on the average of the taxable compensation paid to you
during the 5-year period preceding the year in which the change in control
occurred, as reported by the Company on Form W-2;
(B) a material reduction by the Company
in your base salary as in effect immediately prior to the change in
control;
(C) a change or modification in the
benefit plans in which you were entitled to participate immediately prior to the
change in control, whether by termination, changes in the rate of accrual,
limitations on available benefits or other design changes, which in the
aggregate constitute a material diminution of the total annual value of your
compensation and benefits as measured immediately prior to the change in
control,
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Exhibit
10(k)(vii)
(D) a material diminution in your
authority, duties or responsibilities;
(E) a material diminution in the
authority, duties or responsibilities of the person to whom you
report,
(F) a material diminution in the budget
over which you retain authority; or
(G) a material change in the location
of your Company office;
provided
that, no later than 90 days after the action or omission described in paragraphs
(A) through (H) above you notify the Company of your objection to such action or
omission and your intention to terminate your employment with the Company if the
Company does not remedy the situation within the next 30 days
(iv) Notice of
Termination. Any purported termination by the Company or by
you following a change in control shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon.
(v)
Date of
Termination. "Date of Termination" following a change in
control shall mean (a) if your employment is terminated for Disability, the end
of the 180-day period described in paragraph 4(i) above, (b) if your
employment is terminated by the Company for Cause or by you without Good Reason,
the date specified in the Notice of Termination as your last day of active work
for the Company, (c) if your employment is terminated by you for Good
Reason, the day immediately following the expiration of the 30-day cure period
described in paragraph 4(iii) above, or (d) if your employment is
terminated by the Company for any reason other than Cause, the date on which a
Notice of Termination is given. In the case of termination by the
Company of your employment for Cause, if you have not previously expressly
agreed in writing to the termination, then within thirty (30) days after receipt
by you of the Notice of Termination with respect thereto, you may notify the
Company that a dispute exists concerning the termination, in which event the
Date of Termination shall be the date set either by mutual written agreement of
the parties or by the arbitrators in a proceeding as provided in Section 13
hereof. During the pendency of any such dispute, the Company will
continue to pay you your full compensation in effect just prior to the time the
Notice of Termination is given and until the dispute is resolved in accordance
with Section 13.
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Exhibit
10(k)(vii)
5. Compensation Upon
Termination or During Disability; Other Agreements
(i) During
any period following a change in control that you fail to perform your duties as
a result of incapacity due to physical or mental illness, you shall continue to
receive your salary at the rate then in effect and any benefits or awards under
any Plans shall continue to accrue during such period to the extent not
inconsistent with such Plans, until your employment is terminated pursuant to
and in accordance with paragraphs 4(i) and 4(v) hereof. Thereafter,
your benefits shall be determined in accordance with the Company plans then in
effect.
(ii) If
your employment is terminated for Cause following a change in control of the
Company, the Company shall pay you your salary through the Date of Termination
at the rate in effect just prior to the time a Notice of Termination is given
plus any benefits or awards (including both the cash and stock components) which
pursuant to the terms of any Company plans have been earned or become payable,
but which have not yet been paid to you. Thereupon the Company shall
have no further obligations to you under this Agreement.
(iii) Subject
to Section 8 hereof, if, within twenty-four (24) months after a change in
control of the Company shall have occurred, as defined in Section 3 above, your
employment by the Company shall be terminated (a) by the Company other than for
Cause or Disability, or (b) by you for Good Reason, then, except as otherwise
provided herein, you shall be entitled, without regard to any contrary
provisions of any Company plan, to the benefits provided below:
(A) the Company shall pay your salary
through the Date of Termination at the rate and in accordance with the schedule
in effect just prior to the time a Notice of Termination is given plus any
benefits or awards (including both the cash and stock components) which pursuant
to the terms of any Company plans have been earned or become payable, but which
have not yet been paid to you (including any amounts which previously had been
deferred at your request); and
(B) as severance pay and in lieu of any
further salary for periods subsequent to the Date of Termination, the Company
shall pay to you on the fifth day following the Date of Termination an amount in
cash equal to 2 times your "annualized includible compensation for the base
period" (as defined in Section 280G(d)(1) of the Internal Revenue Code of 1986
(the "Code")); .
provided
that, if you are a “specified employee” within the meaning of 409A, any amount
(or portion thereof) payable to you hereunder on account of your termination of
employment within the 6-month period immediately following such termination,
that is not exempt from 409A under applicable Treasury regulations (including
but not limited to the regulations exempting severance and other separation
payments up to certain limits), shall not be paid until expiration of such
6-month period.
(iv) Following
a change in control of the Company, unless you are terminated by the Company for
Cause or Disability or you terminate your employment other than for Good Reason,
you and your eligible dependents shall remain covered under the Company’s
medical plan on the same basis as an active employee until the earlier of (A)
your becoming eligible for Medicare, or (B) the commencement date of equivalent
benefits from a new employer.
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Exhibit
10(k)(vii)
(v) Except
as specifically provided in paragraph (iv) above, the amount of any payment
provided for in this Section 5 shall not be reduced, offset or subject to
recovery by the Company by reason of any compensation earned by you as the
result of employment by another employer after the Date of Termination, or
otherwise.
6. Successors; Binding
Agreement.
(i) Unless
the obligations under this Agreement are assumed by a Successor (as hereinafter
defined) as a matter of law, the Company shall be required to have the
Successor, by agreement in form and substance satisfactory to you, assent to the
fulfillment by the Company of its obligations under this Agreement or agree to
assume such obligations itself. Failure of the Company to obtain such
assent or agreement at least three business days prior to the time a Person
becomes a Successor (or where the Company does not have at least three business
days advance notice that a Person may become a Successor, within one business
day after having notice that such Person may become or has become a Successor)
shall constitute Good Reason for termination by you of your employment pursuant
to Paragraph 4(iii)(H) and, if a change in control of the Company occurred,
shall entitle you to terminate your employment within 24 months of such change
in control and receive the benefits provided in paragraphs (iii) and (iv) of
Section 5 hereof, subject to the notice and cure provisions of Paragraph
4(iii)(H). For purposes of this Agreement, "Successor" shall mean any
Person that succeeds to, or has the practical ability to control (either
immediately or with the passage of time), the Company's business directly, by
merger or consolidation, or indirectly, by purchase of the Company's Voting
Securities, all or substantially all of its assets or otherwise.
(ii) This
Agreement shall inure to the benefit of and be enforceable by your personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you should die while any
amount would still be payable to you hereunder if you had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to your devisee, legatee or other designee or, if
there be no such designee, to your estate.
(iii) For
purposes of this Agreement, the "Company" shall include any corporation or other
entity which is the surviving or continuing entity in respect of any merger,
consolidation or form of business combination in which the Company ceases to
exist.
7. Fees and Expenses;
Mitigation. (i) Promptly upon request, but no later than 90
days after the fees and expenses are incurred, the Company shall pay all
reasonable legal fees and related expenses incurred by you in connection with
the Agreement following a change in control of the Company, including, without
limitation, (a) all such fees and expenses, if any, incurred in contesting or
disputing any such termination or incurred by you in seeking advice with respect
to the matters set forth in Section 8 hereof or (b) your seeking to obtain or
enforce any right or benefit provided by this Agreement.
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Exhibit
10(k)(vii)
(ii) You
shall not be required to mitigate the amount of any payment the Company becomes
obligated to make to you in connection with this Agreement, by seeking other
employment or otherwise.
8. Taxes.
(i) All
payments to be made to you under this Agreement will be subject to required
withholding of federal, state and local income and employment
taxes.
(ii) Notwithstanding
anything in the foregoing to the contrary, if any of the payments provided for
in this Agreement, together with any other payments which you have the right to
receive from the Company or any corporation which is a member of an "affiliated
group" (as defined in Section 1504(a) of the Code without regard to Section
1504(b) of the Code) of which the Company is a member, would constitute a
"parachute payment" (as defined in Section 280(G)(2) of the Code), the payments
pursuant to this Agreement shall be reduced (reducing first the payments under
Section 5(iii)(B) to the largest amount as will result in no portion of such
payments being subject to the excise tax imposed by Section 4999 of the Code);
provided, however, that the determination as to whether any reduction in the
payments under this Agreement pursuant to this proviso is necessary shall be
made by you in good faith, and such determination shall be conclusive and
binding on the Company with respect to its treatment of the payment for tax
reporting purposes.
9. Survival. The
respective obligations of, and benefits afforded to, the Company and you as
provided in Sections 5, 6(ii), 7, 8, 13 and 14 of this Agreement shall survive
termination of this Agreement.
10. Notice. For
the purposes of this Agreement, notices and all other communications provided
for in the Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid and addressed, to you or to the Company at the
respective address set forth on the first page of this Agreement, provided that
all notices to the Company shall be directed to the attention of the Chairman of
the Board or President of the Company, with a copy to the Secretary of the
Company, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
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Exhibit
10(k)(vii)
11. Miscellaneous. No
provision of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is agreed to in a writing signed by you and
the Chairman of the Board or President of the Company. No wavier by
either party hereto at any time of any breach by the other party hereto of, or
of compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York.
12. Validity. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
13. Arbitration. Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in New York, New York by three arbitrators
in accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrators' award in any
court having jurisdiction; provided, however, that you shall be entitled to seek
specific performance of your right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement. The Company shall bear all costs and expenses
arising in connection with any arbitration proceeding pursuant to this Section
13.
14. Employee's
Commitment. You agree that subsequent to your period of
employment with the Company, you will not at any time communicate or disclose to
any unauthorized person, without the written consent of the Company, any
proprietary processes of the Company or any subsidiary or other confidential
information concerning their business, affairs, products, suppliers or customers
which, if disclosed, would have a material adverse effect upon the business or
operations of the Company and its subsidiaries, taken as a whole; it being
understood, however, that the obligations of this Section 14 shall not apply to
the extent that the aforesaid matters (a) are disclosed in circumstances where
you are legally required to do so or (b) become generally known to and available
for use by the public otherwise than by your wrongful act or
omission.
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15. Related
Agreements. To the extent that any provision of any other
agreement between the Company or any of its subsidiaries and you shall limit,
qualify or be inconsistent with any provision of this Agreement, then for
purposes of this Agreement, while the same shall remain in force, the provision
of this Agreement shall control and such provision of such other agreement shall
be deemed to have been superseded, and to be of no force or effect, as if such
other agreement had been formally amended to the extent necessary to accomplish
such purpose. For avoidance of doubt, subject to the provisions of Section 8
hereof, the lump sum severance payment under paragraph 5(iii)(A) of this
Agreement is intended to replace any salary continuation otherwise payable to
you on account of your termination of employment following a change in control
(as defined herein) under the terms of any employment agreement you may have
with the Company, and the provision for extended medical coverage under Section
5(iv) of this Agreement is intended to supersede any similar provision in any
employment agreement you may have with the Company that otherwise would provide
for continued medical coverage on an active basis for a shorter period of time
on account of your termination of employment following a change in control (as
defined herein), but that any other entitlements you may have under such
employment agreement (or other agreement, plan or policy) upon your termination
of employment following a change in control (as defined herein) shall be
unaffected by this Agreement.
16. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.
If this letter correctly sets forth our
agreement on the subject matter hereof, kindly sign and return to the Company
the enclosed copy of this letter which will then constitute our agreement on
this subject.
Sincerely,
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ARROW
ELECTRONICS, INC.
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By:
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Name
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Title
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Agreed to
this ___ day
of
_________, ____.
_________________________
Executive