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Exhibit 10.2
2008 AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This 2008 Amended and Restated Employment Agreement
(" Agreement ") is made as of this 19 th day of
December, 2008, but to be effective as of June 29, 2008,
between AVNET, INC., a New York corporation, with a principal place
of business at 2211 South 47 th Street, Phoenix, Arizona
85034 (" Employer "), and
having offices at 2211 South
47 th Street, Phoenix, AZ 85034 (" Employee
").
WHEREAS, Employee is now and has been employed by
the Employer as of Employer
pursuant to a certain Employment Agreement dated
(referred to herein as the "
Prior Employment Agreement "); and
WHEREAS, the Employer and Employee desire to amend
and restate the Prior Employment 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 ") and
Internal Revenue Service Revenue Ruling 2008-13; and
WHEREAS, the Employer wishes to provide for the
continued employment of Employee in the role of
of Employer; and
WHEREAS, Employee wishes to accept such continued
responsibilities and employment and to render services to the
Employer in accordance with the provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained in this Agreement, the parties
agree as follows:
SECTION 1
EMPLOYMENT, SALARY, BENEFITS
1.1 Employment . Employer agrees to employ
Employee and Employee agrees to accept employment upon the terms
and conditions hereinafter set forth in this Agreement, which shall
supercede and replace the Prior Employment Agreement.
1.2 Term . Employee’s employment shall
continue as of the date hereof and, subject to earlier termination
as provided herein in Section 2, shall continue until
terminated by either party; provided, however, that the party
desiring to terminate the employment under this Section 1
gives written notice thereof to the other on a date not later than
one (1) year prior to the date of actual termination of
employment (the " Notice Date ").
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 currently engaged as
of Employer. If Employee is
elected or reelected an officer or a director of Employer or any
subsidiary, division or affiliate 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 such compensation (including base salary and incentive
compensation) as shall be agreed upon from time to time between
Employer and Employee.
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1.4.1
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Compensation During One-Year Notice Period . In the event
Employee’s employment hereunder is, or will be, terminated by
providing the one- (1-) year notice under Section 1.2
above (the "Notice") and, prior to providing the Notice, Employer
and Employee fail to agree upon the amount of Employee’s
compensation during all or any portion of the one year commencing
on the Notice Date (" One-Year Notice Period" ), then:
(A) Employee’s base salary for the One-Year Notice
Period shall remain unchanged; and (B) Employee’s
incentive compensation shall be determined as follows: if
Employee’s incentive compensation arrangement for
Employer’s fiscal year in progress when the Notice is given
has been agreed upon: (y) then such arrangement shall remain
unchanged, it being understood that neither Employer nor Employee
shall have any discretion in altering such arrangement in any form
or manner and (z) for the portion of the One-Year Notice
period for which Employer and Employee fail to agree upon
Employee’s incentive compensation arrangement (the "
Disputed Period "), Employee shall not be eligible to
participate in any performance-based cash compensation arrangement
during the Disputed Period and instead shall receive a one-time
cash bonus (to be paid by the Employer upon the expiration date of
the One Year Period) equal to the amount of the annual cash
incentive target most recently agreed upon by Employee and Employer
multiplied by a fraction, where the numerator is the number of days
in the Disputed Period and the denominator is 365.
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1.4.2
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Separation from Service of Specified Employee .
Notwithstanding anything to the contrary in this Agreement, but
subject to the applicable provisions of Section 1.4.3 below,
to the extent that Employee (i) incurs a "separation from service"
within the meaning of Section 409A (a " Separation from
Service ") during the term specified in Section 1.2
(whether before, at the beginning of, or during the Notice Period),
and (ii) is then a "specified employee" within the meaning of
Section 409A and the Company’s specified employee
identification policy, if any (a " Specified Employee "),
and (iii) to the extent that any payment, benefit, or
reimbursement to be made to Employee hereunder is "nonqualified
deferred compensation" within the meaning of Section 409A (and
determined in accordance with the applicable provisions of
Section 1.4.3.), the payment of which is triggered by the
Separation from Service, no such payment, benefit, or reimbursement
upon a Separation from Service will be made before the first day of
the seventh month following the month of Employee’s
Separation from Service (the "Six Month Delay Rule" ). Any
installment payments, benefits, or reimbursements that are subject
to the Six Month Delay Rule under Section 409A shall be
accumulated and paid or reimbursed with any payment or
reimbursement on the first day of the seventh month following the
month of Employee’s Separation from Service, and thereafter
all other such payments, if any, of base salary, incentive
compensation, benefits, or reimbursements shall be made in the
normal course when Employer makes similar payments to active
employees.
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1.4.3
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The preceding delay provisions of Section 1.4.2. shall not
apply to any installment of payments and benefits if and to the
maximum extent that such installment is deemed to not constitute
nonqualified deferred compensation under Section 409A by
virtue of either: (A) the Employee’s right to the
payment was previously subject to a substantial risk of forfeiture
under Section 409A and the payment is thereafter paid within
the time periods prescribed under the short-term deferral exception
under Treasury Regulation Section 1.409A-1(b)(4) (
"Short-Term Deferral Exception" ) or (B) the payment
being made upon involuntary Separation from Service under a
separation pay plan that meets the requirements of Treasury
Regulation Section 1.409A-1(b)(9)(iii) (and any
installments that qualify for the exception under Treasury
Regulation Section 1.409A-1(b)(9)(iii) must be paid no later
than the last day of the Employee’s second taxable year
following the taxable year when the Employee incurred such
involuntary Separation from Service) ( "Separation Pay Plan
Exception" ). The Separation Pay Plan Exception shall be
applied, first, to any installments payable within six months after
Separation from Service that do not otherwise qualify for the
Short-Term Deferral Exception and, next, to the latest installments
payable within the permitted payment period for this exception.
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1.5 Additional Benefits . In addition to the
compensation described in Section 1.4, Employee shall be
entitled to vacation, insurance, retirement and other benefits as
are afforded to personnel of Employer’s United States-based
operating units generally (other than a severance plan or
arrangement available to such personnel) 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 and that participation in such benefits
are subject to the terms and conditions thereof and the
requirements under applicable law (including those under the Code).
If Employer is advised by outside legal counsel that it must
restrict Employee’s participation in retirement or savings
type benefits under applicable law during the One-Year Notice
Period, then, in lieu of participation in those benefits during
such period, Employer shall pay Employee within 30 days upon
the expiration of the One-Year Notice Period (or if later, after
the period described in Section 1.4.2) an amount equal to the
Employer-provided contributions or benefits Employee would have
otherwise accumulated under those retirement or savings type
benefits during such period (determined: (a) without regard to
any pre-tax or after-tax contributions that would have otherwise
been made by Employee (but by including the maximum amount of
matching contributions that Employee would have otherwise received)
or any lost investment or future tax-deferral opportunities and
(b) by assuming that distributions relating to retirement or
savings type benefits would have been made to Employee at the end
of the One-Year Notice Period) plus a gross-up for any federal,
state or local income taxes imposed on Employee on such payment (as
determined by Employer) . Employee also participates in the
Employer’s Executive Officers’ Supplemental Life
Insurance and Retirement Benefits Program (the " Program ")
pursuant to the terms and conditions applicable to the Program.
Employee acknowledges and agrees that the Employer may amend the
Program in any manner that it deems appropriate to comply with
Section 409A (including, but not limited to, amending
distribution provisions thereunder); provided, however, that the
Employer may not decrease Employee’s benefits under the
Program without the Employee’s written consent.
Notwithstanding any other provision of the benefit plans, the
Program or any other policy of Employer providing for reimbursement
of expenses incurred by Employee or the payment of in-kind
benefits, in compliance with Section 409A, to the extent that
such payments are not made under the Short-Term Deferral
Exception:
(i) They will be made pursuant to an
arrangement providing for an objectively determinable and
non-discretionary definition of the expenses eligible for
reimbursement or of the in-kind benefits to be provided and during
an objectively and specifically prescribed period;
(ii) The amount of expenses eligible for
reimbursement and the provision of in-kind benefits during any
calendar year shall not affect the amount of expenses eligible for
reimbursement or the provision of in-kind benefits in any other
calendar year (other than medical benefits described in Section
105(b) of the Code);
(iii) The reimbursement of an eligible expense
(e.g., medical expenses) shall be made on or before
December 31 of the calendar year following the calendar year
in which the expense was incurred; and
(iv) The right to reimbursement or right to
in-kind benefits shall not be subject to liquidation or exchange
for another benefit.
1.6 Compensation on Termination . Upon
termination of this Agreement and Employee’s Separation from
Service, if Employee’s compensation is not determined under
Section 1.4.1 of this Agreement, Employee shall be entitled to
receive only such compensation as had accrued and was unpaid to the
effective date of his Separation of Service and, in the case of
termination of employment due to death or disability, upon the
termination of this Agreement. If Employee’s Separation from
Service 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 (up to the day of his Separation
from Service) bears to 365 days; provided, however, that
incentive compensation shall only be paid after the end of the
performance period, only to the extent that performance targets
have been met; and provided further that if Employee is the
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