Exhibit 10.3
2008 AMENDED AND
RESTATED
CHANGE OF CONTROL AGREEMENT
This 2008 Amended and Restated Change
of Control Agreement (the “ Agreement ”) is made
by and between Avnet, Inc., a New York corporation, with its
principal place of business at 2211 South 47 th Street,
Phoenix, Arizona 85034 ( “ Avnet ” or the
“ Company ”) and
(the
“Officer” ) effective as of this 19
th day of December, 2008 (the “ Effective
Date ”). Avnet and the Officer are collectively referred
to in this Agreement as the “ Parties. ”
WHEREAS, contemporaneously herewith,
the Parties have entered into that certain 2008 Amended and
Restated Employment Agreement (the “Employment
Agreement”); and
WHEREAS, the Parties previously
entered into a prior Change of Control Agreement effective
(the “ Prior
Agreement ”); and
WHEREAS, the Parties wish to amend
and restate the Prior Agreement primarily for compliance with
Section 409A of the Internal Revenue Code of 1986, as amended
(“Code”), and the guidance issued thereunder by the
United States Department of Treasury and/or the Internal Revenue
Service (collectively “ Section 409A
”).
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained in this Agreement and
the Employment Agreement, the Parties agree as follows:
1. Definitions
.
(a) “ Change of
Control ” means the date of the earliest to occur of the
following events:
(i) the
acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a “
Person ”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 50% or
more of either: (A) the then outstanding shares of common
stock of the Company or (B) the combined voting power of the
then outstanding voting securities of the Company entitled to vote
generally in the election of members of the Board of Directors of
the Company (the “Board”); provided, however, that the
following transactions shall not constitute a Change of Control
under this subsection (i): (x) any acquisition directly from
the Company (excluding an acquisition by virtue of the exercise of
a conversion privilege), (y) any acquisition by the Company,
or (z) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity
controlled by the Company; or
(ii) the
individuals who, as of the Effective Date, constitute the Board
(the “ Incumbent Board ”) are replaced during
any twelve- (12-) month period by new Board members whose
appointment or nomination was not endorsed by a majority of the
Incumbent Board; provided, however, that any individual becoming a
director subsequent to the Effective Date whose election, or
nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual was a member of the Incumbent Board, but excluding for
this purpose any such individual whose appointment or nomination to
the Board occurs as a result of an actual or threatened election
contest with respect to the election or removal of any member of
the Board, or other actual or threatened solicitation of proxies or
consents, by or on behalf of a Person other than a majority of the
then Incumbent Board; or
(iii) Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company or the sale or
other disposition of all or substantially all of the assets of the
Company (in one or more transactions) and, in either case, the
consummation of such transaction.
(b) “ Constructive
Termination ” means the happening of any of the following
events without the written consent of the Officer:
(i) a
material diminution of the Officer’s authorities, duties or
responsibilities, including, without limitation, title and
reporting relationship;
(ii) a
material diminution in the authority, duties or responsibilities of
the supervisor to whom the Officer is required to report, including
a requirement that the Officer report to another officer of the
Company instead of reporting directly to the Board;
(iii) a
material change in the geographic location at which the Officer is
primarily required to perform services for the Company;
(iv) a
material reduction in the Officer’s base compensation; or
(v) any
other action or inaction that constitutes a material breach by the
Company under its employment agreement with the Officer.
In accordance with Section 409A,
the Officer shall give written notice to the Company (or its
successor) within ninety (90) days of any of the foregoing
events, and the Company (or its successor) shall have the
opportunity to remedy its action within thirty (30) days
