AMENDMENT
TO
CHANGE OF CONTROL AGREEMENT AND NON-COMPETITION
AGREEMENT
THIS
AMENDMENT TO CHANGE OF CONTROL AGREEMENT AND NON-COMPETITION
AGREEMENT (“Amendment”) by and between Agilysys, Inc.,
formerly known as Pioneer-Standard Electronics, Inc., an Ohio
corporation (the “Company”), and Richard A. Sayers II
(the “Employee”), is effective as of the execution date
below.
WHEREAS,
the Company and the Employee are parties to a Change of Control
Agreement dated as of February 25, 2000, as subsequently
amended (the “Change of Control Agreement”);
and
WHEREAS,
the Company and the Employee are parties to a Non-Competition
Agreement dated as of February 25, 2000, as subsequently
amended (the “Non-Competition Agreement”);
and
WHEREAS,
the Company and the Employee desire that certain modifications be
made to the Change of Control Agreement and Non-Competition
Agreement to comply with Section 409A of the Internal Revenue
Code of 1986, as amended; and
WHEREAS,
Section 8(c) of the Change of Control Agreement and the
Non-Competition Agreement permit the parties thereto to amend such
agreements in a writing signed by each party.
NOW,
THEREFORE, in consideration of the parties’ mutual desire to
modify the Change of Control Agreement and the Non-Competition
Agreement, the parties agree as follows effective as of the date of
execution of this Amendment:
PART I
— OMNIBUS AMENDMENT TO AGREEMENTS
1. For
purposes of this Part I, references to the
“Agreements” shall refer to the Change of Control
Agreement and the Non-Competition Agreement, collectively.
Capitalized terms not otherwise defined in this Part I shall
have the meanings ascribed to them in the Change of Control
Agreement or Non-Competition Agreement, as applicable.
2. The
Agreements are hereby amended by providing that all references to
“termination of employment” or forms and derivations
thereof shall refer to events which constitute a “separation
from service” as defined under and for purposes of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”).
3. For
purposes of Section 409A of the Code, the “severance
payments” (as defined in Section 3 of the
Non-Competition Agreement) and the payments under Section 3.1
of the Change of Control Agreement (collectively, such payments
under the Agreements will be referred to as the “Severance
Payments”), are intended to constitute the right to a series
of separate payments. If possible, any Severance Payments made
during the first six months following Employee’s termination
of employment
without cause from the
Company under Section 3 of the Non-Competition Agreement or
following Employee’s termination of employment without Cause
or for Good Reason under Section 3.1 of the Change of Control
Agreement are intended to fit into the “separation pay due to
involuntary separation from service” exception under Treas.
Reg. Section 1.409A-1(b)(9)(iii), subject to any limits
contained therein, or the “short-term deferral”
exception under Treas. Reg. Section 1.409A-1(b)(4), if
applicable.
4. It
is the intention of the Company and Employee that the provision of
the auto allowance and benefit coverage as severance payments in
Section 3 of the Non-Competition Agreement or the health
insurance and retirement benefits in Section 3.1(d) in the
Change of Control Agreement fit into exemptions from
Section 409A of the Code or otherwise comply with
Section 409A of the Code, including, but not limited to, the
following:
Reimbursements
paid or in-kind benefits provided for the 24 months following
Employee’s termination will be paid in accordance with Treas.
Reg. Section 1.409A-1(b)(9)(v); provided, however, that from
the end of the period during which Employee would be entitled to
medical expense reimbursements under Treas. Reg.
Section 1.409A-1(b)(9)(v)(B) through the end of the 24-month
severance payment period, any reimbursements provided for medical
expenses under Section 3 of the Non-Competition Agreement or
Section 3.1(e) under the Change of Control Agreement will be
paid at the same time as payments are made for active employees of
the Company and, in any event, will be paid no later than the end
of the taxable year following the taxable year in which such
expense was incurred. The amounts eligible for reimbursement or the
in-kind benefits provided regarding such medical expenses during
any one taxable year may not affect the expenses eligible for
reimbursement or in-kind benefits to be provided in any other
taxable year.
5. If
at the time of Employee’s termination of employment, he is a
“specified employee” of the Company as defined in and
pursuant to Section 409A of the Code, then any of the
Severance Payments not fitting into an exemption described in
Sections 3 or 4 above are required to be delayed for a period
of six months following his termination of employment (the
“six-month period”). As such, the payment of any cash
amounts due under the Agreement during the fi
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