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Exhibit 10.3
EXECUTION COPY
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EMPLOYMENT AGREEMENT
BETWEEN
PIONEER-STANDARD ELECTRONICS, INC.
AND
STEVEN M. BILLICK
April 26, 2000
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TABLE OF CONTENTS
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Page
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Employment........................................................................................................1
Period of Employment..............................................................................................1
Position, Duties, Responsibilities................................................................................1
Compensation, Compensation Plans, Perquisites....................................................................2
Employee Benefit Plans............................................................................................3
Effect of Death or Disability.....................................................................................4
Termination.......................................................................................................4
General..................................................................................................4
Change in Control........................................................................................5
For Cause or Voluntary Termination Without a Good Reason.................................................6
Without Cause or Voluntary Termination for a Good Reason.................................................7
Arbitration..............................................................................................8
Non-Competition, Confidential Information and Non-Interference....................................................9
Withholding......................................................................................................10
Notices..........................................................................................................10
General Provisions...............................................................................................11
Amendment or Modification; Waiver................................................................................12
Severability.....................................................................................................13
Successors to the Company........................................................................................13
Operation of Agreement...........................................................................................13
Enforcement Costs................................................................................................14
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EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT between PIONEER-STANDARD ELECTRONICS, INC., an
Ohio corporation (the "Company"), and STEVEN M. BILLICK ("Billick"), dated April
26, 2000, effective April 24, 2000.
W I T N E S S E T H:
WHEREAS, The Company desires to retain the services of Billick as
Senior Vice President and Chief Financial Officer, and Billick desires to render
his services to the Company in such capacities;
WHEREAS, The Company and Billick desire to set forth their mutual
understanding regarding the terms of Billick's employment with the Company;
WHEREAS, The Company deems this Agreement necessary at the present time
to meet the need to retain strong management.
NOW, THEREFORE, it is hereby agreed by and between the Company and
Billick as follows:
1. Employment
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The Company hereby agrees to employ Billick, and Billick
hereby agrees to remain in the employ of the Company, for the period
set forth in Section 2 hereof (the "Period of Employment"), in the
position and with the duties and responsibilities set forth in Section
3 hereof, and upon the other terms and conditions hereinafter stated.
2. Period of Employment
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For purposes of this Agreement, the Period of Employment,
subject only to the provisions of Section 6 hereof, shall continue for
a one-year period from the effective date hereof and thereafter on a
year-to-year basis (i) subject to termination of this Agreement by the
Company effective as of the next anniversary of the effective date
hereof following written notice of termination, which notice must be
given to Billick no later than February 1 of the Company's then current
fiscal year, or (ii) until the earlier termination of employment as set
forth in Section 7 hereof.
3. Position, Duties, Responsibilities
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3.01 SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER. During the
Period of Employment, Billick shall serve as Senior Vice President and
Chief Financial Officer of the Company reporting to the Chief Executive
Officer of the Company and shall have the authority, power, and duties
with regard to his position as may from time to time be assigned by the
Chief Executive Officer or the Board of Directors of the Company.
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3.02 ATTENTION TO DUTIES. Throughout the Period of Employment, Billick
shall devote his full time and undivided attention during normal
business hours to the business and affairs of the Company, except for
reasonable vacations afforded the Company's executive officers and
except for illness or incapacity, but nothing in this Agreement shall
preclude Billick from devoting reasonable time required for serving as
a director or member of an advisory committee of any organization
involving no conflict of interest with the interests of the Company,
from engaging in charitable and community activities, and from managing
his personal affairs, provided that such activities do not materially
interfere with the regular performance of his duties and
responsibilities under this Agreement.
3.03 OFFICE. Throughout the Period of Employment, Billick's office
shall be located at the corporate offices of the Company, and Billick
shall not be required to locate his office elsewhere without his prior
written consent, nor shall he be required to be absent therefrom on
travel status or otherwise more than a total of sixty (60) days in any
calendar year nor more than fifteen (15) consecutive days at any one
time.
4. Compensation, Compensation Plans, Perquisites
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4.01 Compensation.
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(a) For all services rendered by Billick in any capacity
during the Period of Employment, including, without
limitation, services as an executive officer, director or
member of any committee of the Company or of any subsidiary,
division or affiliate thereof, Billick shall be entitled as
compensation to the following:
(i) A base salary, payable not less often than
monthly, at the rate of $25,000.00 per
month, with such increases in such rate as
may be awarded from time to time by the
Board of Directors of the Company or the
Compensation Committee, as applicable;
(ii) Participation in the Company's 2000 Annual
Incentive Plan (the "Annual Incentive Plan")
in accordance with the provisions of such
plan as in effect as of the date of this
Agreement and as may be amended from time to
time, conditioned upon and subject to
Billick's prior written consent to any such
amendment as shall apply to him.
(b) Any increase in salary, incentive compensation or other
form of compensation shall in no way diminish any other
obligation of the Company under this Agreement, unless
specifically agreed to in writing by Billick.
4.02 PERQUISITES. During the Period of Employment, Billick shall be
entitled to perquisites, including without limitation, an office,
secretarial staff and clerical staff, and
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to fringe benefits comparable to those enjoyed by the elected executive
officers of the Company, as well as to reimbursement, upon proper
accounting, of reasonable business expenses and disbursements incurred
by him in the course of his duties.
5. EMPLOYEE BENEFIT PLANS
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5.01 BENEFIT PLANS. Billick, his dependents, beneficiaries and estate
shall be entitled to all payments and benefits and service credit for
benefits during the Period of Employment to which executive officers of
the Company, their dependents and beneficiaries are entitled as the
result of the employment of such executive officers during the Period
of Employment under the terms of employee plans and practices of the
Company, including, without limitation, the Company's Retirement Plan,
its Benefit Equalization Plan, its Supplemental Executive Retirement
Plan, its group life insurance plan, its accidental death and
dismemberment insurance, its disability, medical and health and welfare
plans, any key person individual life and disability policies,
automobile expense reimbursement, club membership fees and dues, and
other present or equivalent successor plans and practices of the
Company, its subsidiaries and divisions, for which other executive
officers, their dependents and beneficiaries are eligible, and to all
payments or other benefits under any such plan or practice after the
Period of Employment as a result of participation in such plan or
practice during the Period of Employment.
5.02 STOCK PLANS. Billick shall be eligible to participate in the
Company's 1991 Stock Option Plan and 2000 Stock Incentive Plan (which,
together with any successor stock option plan or plans as may be in
effect from time to time, are referred to herein as the "Option Plan");
provided, however, that the grant of any stock options ("Options")
under any Option Plan shall be at the sole discretion of the
Compensation Committee of the Board of Directors of the Company. The
Company may from time to time grant Billick stock options at an option
price equal to the fair market value of the Company's Common Shares at
the date of grant. The terms and conditions of exercise of Options
shall be as is set forth in Billick's Stock Option Agreements (the
"Option Agreements") with the Company; provided, however, that in the
event of a Change in Control as defined in Section 15.02 hereof, then
notwithstanding the provisions of said Option Agreements, all options
(including those granted to him under the 1991 Stock Option Plan and
the 2000 Stock Incentive Plan) shall immediately be 100% vested and
Billick shall have the immediate right of exercise with respect to all
Options and the underlying Common Shares covered by said Option
Agreements. In the event that Billick is discharged or resigns his
employment during the one (1) year period following a Change in Control
as defined in Section 15.02 hereof, Billick shall have the period of
one (1) year after the date of such termination or resignation (or such
longer period as may be specified in the Option Agreement) or the
remainder of the term of such Options, whichever is shorter, to
exercise his Options, and any such exercise shall be irrevocable.
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6. Effect of Death or Disability
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6.01 DEATH. In the event of the death of Billick during the Period of
Employment, the Period of Employment shall be deemed to have ended as
of the close of business on the last day of the month in which death
shall have occurred, and his legal representative shall be entitled to
(i) the compensation provided for in Section 4.01(a)(i) hereof for the
month in which death shall take place at the rate being paid at the
time of death, (ii) an incentive cash bonus amount equal to his earned
incentive cash bonus under the Annual Incentive Plan for the
immediately preceding fiscal year, pro rated through the last date of
the Period of Employment, and (iii) any benefits provided pursuant to
Section 5.01 hereof which are payable pursuant to the terms of the
applicable plan or practice.
6.02 Disability.
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(a) The term "Disability," as used in this Agreement, shall
mean an illness or accident which prevents Billick from
performing his duties under this Agreement for a period of six
(6) consecutive months. The Period of Employment shall be
deemed to have ended as of the close of business on the last
day of such six (6) month period but without prejudice to any
payments due Billick during such six (6) month period or
pursuant to any disability plan or disability insurance
policy.
(b) In the event of the Disability of Billick during the
Period of Employment, Billick shall be entitled to (i) the
compensation provided for in Section 4.01(a)(i) hereof at the
rate being paid at the time of the commencement of Disability,
for the period of such Disability but not in excess of six (6)
months, (ii) an incentive cash bonus equal to his earned
incentive cash bonus under the Annual Incentive Plan for the
immediately preceding fiscal year, pro rated through the last
date of the Period of Employment, and (iii) any benefits
provided pursuant to Section 5.01 hereof which are payable
pursuant to the terms of the applicable plan or practice,
except that Billick shall not be subject to the payment cap
provided for by the Company's short-term disability plan.
(c) The amount of any payments due under this Section 6.02
shall be reduced by any payments which Billick may be paid for
the same period under any disability plan of the Company or of
any subsidiary or affiliate thereof.
7. Termination
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7.01 GENERAL. The Company may terminate Billick's employment with or
without Cause, and Billick may voluntarily terminate his employment, at
any time during the Period of Employment, subject to the provisions of
this Section 7. The termination of this Agreement by the Company
pursuant to Section 2(i) hereof (other than any such termination prior
to or as of the initial anniversary hereof) shall be deemed to be a
termination of employment without Cause as set forth in Section 7.04
hereof. In the event that this Agreement is to be terminated pursuant
to Section 2(i) hereof, upon receipt of the notice of termination
Billick shall have the option of either leaving the Company at
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any time prior to the March 31 effective date of the termination of
this Agreement or continuing his employment until such effective date,
and in either event Billick shall be entitled to receive all of the
payments and benefits as provided in Section 7.04 hereof; provided,
however, that in the event Billick elects to continue his employment
with the Company subsequent to the March 31 effective date of the
termination of this Agreement, for a period of three (3) months
thereafter Billick shall have the right to terminate his employment
with the Company and any such termination shall be deemed to be a
termination of employment without Cause as set forth above.
7.02 CHANGE IN CONTROL. If, during the one (1) year period following a
Change in Control of the Company as defined in Section 15.02 hereof,
Billick is discharged or voluntarily resigns his employment, there
shall be paid or provided to Billick, his dependents, beneficiaries and
estate, as liquidated damages or severance pay, or both, the following:
(a) The compensation provided for in Section 4.01(a)(i)
hereof for the month in which termination shall have
occurred at the rate being paid at the time of
termination; plus
(b) If such discharge or resignation shall occur prior to
April 1, 2001, an amount equal to twelve (12) times
his monthly base salary then in effect plus $100,000;
or
(c) If such discharge or resignation shall occur after
April 1, 2001:
(i) An incentive cash bonus calculated based
upon his earned incentive cash bonus under
the Annual Incentive Plan for the
immediately preceding fiscal year, pro rated
for the then current fiscal year through his
date of termination; plus
(ii) An amount equal to twelve (12) times his
monthly base salary in effect as of such
discharge or resignation; plus
(iii) An amount equal to his earned incentive cash
bonus under the Annual Incentive Plan for
the immediately preceding fiscal year.
Such amounts shall be paid to Billick in one payment
immediately upon his termination of employment.
(d) For the one (1) year period following the date of his
termination of employment, Billick, his dependents,
beneficiaries and estate, shall continue to be
entitled to all benefits provided pursuant to Section
5.01 hereof which are payable pursuant to the terms
of the applicable plan or practice, and service
credit for benefits under all employee benefit plans
of the Company, including, without limitation, the
Company's Retirement Plan, Supplemental Executive
Retirement Plan and Benefit Equalization
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Plan referred to in Section 5.01 hereof, upon the
same basis as immediately prior to termination and,
to the extent that such benefits or service credit
for benefits shall not be payable or provided under
any such plans to Billick, his dependents,
beneficiaries and estate, by reason of his no longer
being an employee of the Company as the result of
termination, or any such plan, program or arrangement
is discontinued or the benefits thereunder are
materially reduced, the Company shall provide
Billick, his dependents, beneficiaries and estate, as
appropriate, a benefit or payment which places
Billick, his dependents, beneficiaries and estate in
at least as good of an economic position (taking into
account the favorable economic tax and legal
characteristics customary for such plans, policies or
arrangements) as if the benefit to which such persons
were entitled to receive under such plans, programs
and arrangements immediately prior to termination had
been paid.
Any termination of Billick's employment which either is (x) a
termination by the Company other than for Cause or (y) a voluntary
resignation by Billick after the occurrence of an event which would
constitute Good Reason under Section 15.03 hereof, which termination or
resignation occurs within the period commencing on the commencement
date of a tender offer for the Company's Common Shares, the execution
of a letter of intent or the execution of a definitive agreement which,
in each case, could reasonably be expected to lead to a Change in
Control as defined in Section 15.02 hereof, and ending on either (A)
the date of the Change in Control resulting from such tender offer or
the consummation of the transaction contemplated by such letter of
intent or such definitive agreement, as the case may be, or (B) the
date as of which the Board of Directors determines in good faith that
such tender offer has been withdrawn or has reached a final conclusion
not resulting in a Change in Control or the transaction contemplated by
such letter of intent or such definitive agreement is not to be
consummated or if consummated, will not lead to a Change in Control, as
the case may be, shall be deemed to be a termination under this Section
7.02.
An election by Billick to terminate his employment under the
provisions of this Section 7.02 shall not be deemed a voluntary
termination of employment by Billick under Section 7.03 hereof.
Further, an election by Billick to terminate his employment under the
provisions of subsection (y) of this Section 7.02 shall not be deemed
to be a voluntary termination of employment for a Good Reason under
Section 7.04 hereof.
7.03 FOR CAUSE OR VOLUNTARY TERMINATION WITHOUT A GOOD REASON. For the
purpose of any provision of this Agreement, the termination of
Billick's employment shall be deemed to have been for Cause only if:
(a) termination of his employment shall have been the
result of Billick's conviction of any of the
following offenses, provided that such offense
results in material economic harm to the Company or
has a materially adverse effect on the Company's
operations, property or business
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relationships: (i) misappropriation of money or other
property of the Company or (ii) any felony;
(b) there has been a breach by Billick during the Period
of Employment of the provisions of Section 3.03
hereof relating to devotion of full time to the
affairs of the Company or any provision of Section 8
hereof, and such breach results in demonstrable
significant injury to the Company, and with respect
to any alleged breach of Section 3.03 hereof, Billick
shall have failed to remedy such breach within thirty
(30) days after his receipt of written notice from
the Company; or
(c) there has been a substantial and continued failure or
refusal to perform under this Agreement which Billick
shall have failed to remedy within thirty (30) days
after his receipt of written notice from the Company.
If Billick's employment is terminated by the Company for
Cause, or if Billick shall voluntarily terminate his employment with
the Company without a Good Reason as defined in Section 15.03 hereof,
Billick shall be entitled to the compensation provided for in Section
4.01(a)(i) hereof through the date of such termination. Billick shall
not be entitled to any additional compensation or benefits (except for
any vested benefits), and shall continue to be bound by the provisions
of Section 8 hereof.
7.04 WITHOUT CAUSE OR VOLUNTARY TERMINATION FOR A GOOD REASON. Subject
to compliance by Billick with the provisions of Section 8 hereof, if
the Company shall terminate Billick's employment without Cause or if
Billick shall voluntarily terminate his employment for a Good Reason as
defined in Section 15.03 hereof, there shall be paid or provided to
Billick, his dependents, beneficiaries and estate, as liquidated
damages or severance pay, or both:
(a) The compensation provided for in Section 4.01(a)(i)
hereof for the month in which termination shall have
occurred at the rate being paid at the time of such
termination; PLUS
(b) If such termination shall occur prior to April 1,
2001, an amount equal to twelve (12) times his
monthly base salary then in effect plus $100,000; or
(c) If such termination shall occur after April 1, 2001:
(i) an incentive cash bonus calculated based
upon his earned incentive cash bonus under
the Annual Incentive Plan for the
immediately preceding fiscal year, pro rated
for the then current fiscal year through his
date of termination; and
(ii) the amount (the "Payment Amount") per month
equal to 1/12th of (A) twelve (12) times his
monthly base salary at the rate being paid
at the time of termination PLUS (B) an
amount equal to his earned
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incentive cash bonus under the Annual
Incentive Plan for the immediately preceding
completed fiscal year.
Such Payment Amount shall be paid to Billick or, in case of his prior
death, to his legal representative or estate, in monthly installments
at the end of each month commencing with the month next following that
in which such termination shall have occurred, and continuing for a
period of twelve (12) months. Billick, his dependents, beneficiaries
and estate shall also receive, for the twelve (12) month period
following such termination, all benefits provided pursuant to Section
5.01 hereof which are payable pursuant to the terms of the applicable
plan or practice, and service credit for benefits under all employee
benefit plans of the Company, including, without limitation, the
Company's Retirement Plan, Benefit Equalization Plan and Supplemental
Executive Retirement Plan referred to in Section 5.01 hereof, upon the
same basis as immediately prior to termination and, to the extent that
such benefits or service credit for benefits shall not be payable or
provided under any such plans to Billick, his dependents, beneficiaries
and estate, by reason of his no longer being an employee of the Company
as the result of termination, or any such plan, program or arrangement
is discontinued or the benefits thereunder are materially reduced, the
Company shall provide Billick, his dependents, beneficiaries and
estate, as appropriate, a benefit or payment which places Billick, his
dependents, beneficiaries and estate in at least as good of an economic
position (taking into account the favorable economic, tax and legal
characteristics customary for such plans, policies or arrangements) as
if the benefit to which such persons were entitled to receive under
such plans, programs and arrangements immediately prior to termination
had been paid. In the event the Company fails to make such payments
when due, then the remaining payments shall become due and payable
immediately. Billick shall be under no obligation to seek other
employment, but without otherwise limiting the purposes or effect of
this Section 7.04, any amounts payable to Billick pursuant to Section
7.04(iii) hereof shall be reduced by any amounts which Billick actually
receives from another employer during the twelve (12) month period
following the date of his termination without Cause, and any benefits
payable to Billick or his dependents pursuant to this Section 7.04 by
reason of any "welfare benefit plan" of the Company (as the term
"welfare benefit plan" is defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended) or perquisites
shall be reduced to the extent comparable benefits or perquisites (or
the cash equivalent thereof) are actually received by Billick or his
dependents from another employer during such period. Notwithstanding
any provision in this Section 7.04 to the contrary, all obligations of
the Company and Billick's right to any payment or benefit under this
Section 7.04 shall cease upon Billick's breach of any provision of
Section 8 hereof.
7.05 ARBITRATION. In the event that Billick's employment shall be
terminated by the Company during the Period of Employment or the
Company shall withhold payments or provision of benefits because
Billick is alleged to be engaged in activities prohibited by Section 8
hereof or for any other reason, Billick shall have the right, in
addition to all other rights and remedies provided by law, at his
election either to seek arbitration in the metropolitan area of
Cleveland, Ohio, under the Commercial Arbitration Rules of the American
Arbitration Association by serving a notice to arbitrate upon the
Company or
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to institute a judicial proceeding, in either case within one hundred
and twenty (120) days after having received notice of termination of
his employment.
8. Non-Competition, Confidential Information and Non-Interference
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8.01 NON-COMPETITION. During the Period of Employment and the two (2)
year period following the termination of his employment (except in the
case of a voluntary or involuntary termination of employment within one
(1) year after a Change in Control), Billick shall not become an
officer, director, joint venturer, employee, consultant or five percent
(5%) shareholder (directly or indirectly), or promote or assist
(financially or otherwise), any entity which competes with any business
in which the Company or any of its affiliates are engaged as of the
date of such termination of employment. Billick understands that the
foregoing restrictions may limit his ability to engage in certain
business pursuits during the period provided for herein, but
acknowledges that he will receive sufficiently higher remuneration and
other benefits from the Company hereunder than he would otherwise
receive to justify such restriction. Billick acknowledges that he
understands the effect of the provisions of this Section 8(a), and that
he has had reasonable time to consider the effect of these provisions,
and that he was encouraged to and had an opportunity to consult an
attorney with respect to these provisions.
8.02 CONFIDENTIAL INFORMATION. Except for information which is already
in the public domain, or which is publicly disclosed by persons other
than Billick, or which is required by law or court order to be
disclosed, or information given to Billick by a third party not bound
by any obligation of confidentiality, Billick shall at all times during
and after his employment with the Company hold in strictest confidence
any and all confidential information within his knowledge and which is
material to the business of the Company (whether acquired prior to or
during his employment with the Company) concerning the inventions,
products, processes, methods of distribution, customers, services,
business, suppliers or trade secrets of the Company, except that
Billick may, in connection with the performance of his duties to the
Company, divulge confidential information to the directors, officers,
employees and shareholders of the Company and to the advisors,
accountants, attorneys or lenders of the Company or such other
individuals as deemed prudent in the course of business to carry out
the responsibilities and duties of his position, or as required by law.
Such confidential information includes, without limitation, financial
information, sales information, price lists, marketing data, the
identity and lists of actual and potential customers and technical
information, all to the extent that such information is not intended by
the Company for public dissemination.
Billick also agrees that upon leaving the Company's employ he
will not take with him, without the prior written consent of an officer
authorized to act in the matter by the Board of Directors of the
Company, any Company document, contract, internal financial or
management reports, customers list, product list, price list, catalog,
employee list, procedures, software, MIS data, drawing, blueprint,
specification or other document of the Company, its subsidiaries,
affiliates and divisions, which is of a confidential nature relating to
the Company, its subsidiaries, affiliates and divisions, or, without
limitation,
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relating to its or their methods of purchase or distribution, or any
description of any trade secret, formulae or secret processes.
8.03. NONINTERFERENCE. Billick shall not, at any time during the Period
of Employment or within the two (2) year period after his employment is
terminated with the Company (except in the case of a voluntary or
involuntary termination of employment within one (1) year after a
Change in Control), without the prior written consent of the Company,
directly or indirectly, induce or attempt to induce any employee, agent
or other representative or associate of the Company to terminate his or
her employment, representation or other relationship with the Company,
or in any way directly or indirectly interfere with any relationship
between the Company and its suppliers or customers.
8.04. REMEDY. Billick acknowledges that Sections 8.01, 8.02 and 8.03
hereof were negotiated at arms length and are required for the fair and
reasonable protection of the Company. Nevertheless, if any aspect of
these restrictions is found to be unreasonable or otherwise
unenforceable by a court of competent jurisdiction, the Company and
Billick intend for such restrictions to be modified by such court so as
to be reasonable and enforceable and, as so modified by the court, to
be fully enforced. Billick and the Company further acknowledge and
agree that a breach of those obligations and agreements will result in
irreparable and continuing damage to the Company for which there will
be no adequate remedy at law and, therefore, Billick and the Company
agree that in the event of any breach of said obligations and
agreements the Company, and its successors and assigns, shall be
entitled to injunctive relief and such other and further relief,
including monetary damages, as is proper in the circumstances. It is
further agreed that the running of the periods provided in Sections
8.01 and 8.03 hereof shall be tolled during any period which Billick
shall be adjudged to have been in violation of any of his obligations
under such Sections.
9. Withholding
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Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to Billick or his estate
or beneficiaries, shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Company may
reasonably determine it should withhold pursuant to any applicable law
or regulation. In lieu of withholding such amounts, the Company may
accept other provisions to the end that it has sufficient funds to pay
all taxes required by law to be withheld in respect of such payments or
any of them.
10. Notices
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All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be
sufficiently given if and when mailed in the continental United States
by registered or certified mail or personally delivered to the party
entitled thereto at the address stated herein or to such changed
address as the addressee may have given by a similar notice:
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To the Company: Pioneer-Standard Electronics, Inc.
6065 Parkland Boulevard
Mayfield Heights, Ohio 44124
Attention: Secretary or
Assistant Secretary
To Billick: Steven M. Billick
17281 Buckthorn Drive
Chagrin Falls, Ohio 44023-1412
11. General Provisions
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11.01 NO SET-OFF OR COUNTER CLAIM. There shall be no right of set-off
or counter claim, in respect of any claim, debt or obligation, against
payments to Billick, his dependents, beneficiaries or estate provided
for in this Agreement.
11.02 BENEFICIARY. No right or interest to or in any payments shall be
assignable by Billick; provided, however, that this provision shall not
preclude him from designating one or more beneficiaries to receive any
amount that may be payable after his death and shall not preclude the
legal representative of his estate from assigning any right hereunder
to the person or persons entitled thereto under his will or, in the
case of intestacy, to the person or persons entitled thereto under the
laws of intestacy applicable to his estate. The term "beneficiaries" as
used in this Agreement shall mean a beneficiary or beneficiaries so
designated to receive any such amount or, if no beneficiary has been so
designated, the legal representative of Billick's estate.
11.03 ASSIGNMENT. No right, benefit or interest hereunder, shall be
subject to anticipation, alienation, sale, assignment, encumbrance,
charge, pledge, hypothecation, or set-off in respect of any claim, debt
or obligation, or to execution, attachment, levy or similar process, or
assignment by operation of law. Any attempt, voluntary or involuntary,
to effect any action specified in the immediately preceding sentence
shall, to the full extent permitted by law, be null, void and of no
effect.
11.04 LEGAL REPRESENTATIVE. In the event of Billick's death or a
judicial determination of his incompetence, reference in this Agreement
to Billick shall be deemed, where appropriate, to refer to his legal
representative or, where appropriate, to his beneficiary or
beneficiaries.
11.05 HEADINGS. The titles to sections in this Agreement are intended
solely for convenience and no provision of this Agreement is to be
construed by reference to the title of any section.
11.06 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of (a) Billick and, subject to the provisions of
Sections 11.02 and 11.03 hereof,
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his heirs and legal representatives, and (b) the Company and its
successors as provided in Section 14 hereof.
11.07 EXCISE TAX GROSS UP. Billick shall be entitled to a cash payment
(the "Excise Tax Gross-Up Payment") equal to the amount of excise taxes
which Billick is required to pay pursuant to Section 4999 of the
Internal Revenue Code of 1986, as amended ("Code"), as a result of any
parachute payments as defined in Section 280G(b)(2)made by or on behalf
of the Company or any successor thereto, under this Agreement or
otherwise, resulting in an "excess parachute payment" as defined in
Section 280G(b)(1) of the Code. In addition to the foregoing, the
Excise Tax Gross-Up Payment due to Billick under this Section 11.07
shall be increased by the aggregate of the amount of federal, state and
local income and excise taxes for which Billick will be liable on
account of the Excise Tax Gross-Up Payment to be made under this
Section 11.07, such that Billick will receive the Excise Tax Gross-Up
Payment net of all income and excise taxes imposed on Billick on
account of the receipt of the Excise Tax Gross-Up Payment. The
computation of the Excise Tax Gross-Up Payment shall be determined, at
the expense of the Company, by an independent accounting, actuarial or
consulting firm selected by the Company. Such Excise Tax Gross-Up
Payment shall be made at such time as the Company shall determine, in
its sole discretion, but in no event later than the date five (5)
business days before the due date, without regard to any extension, for
filing Billick's federal income tax return for the calendar year for
which it is determined that excise taxes are payable under Section 4999
of the Code. Notwithstanding the foregoing, there shall be no
duplication of payments by the Company under this Section 11.07 in
respect of excise taxes under Section 4999 of the Code to the extent
the Company is making payments in respect of such excise taxes under
any other arrangement with Billick. In the event that Billick is
ultimately assessed with excise taxes under Section 4999 of the Code
which exceed the amount of excise taxes used in computing Billick's
payment under this Section 11.07, the Company or its successor shall
indemnify Billick for such additional excise taxes plus any additional
excise taxes, income taxes, interest and penalties resulting from the
additional excise taxes and the indemnity hereunder.
12. Amendment or Modification; Waiver
---------------------------------
No provision of this Agreement may be amended or waived unless
such amendment or waiver is authorized by the Board of Directors of the
Company or the Compensation Committee thereof and is agreed to in
writing, signed by Billick and by an officer of the Company thereunto
duly authorized by either the Board of Directors or the Compensation
Committee. Except as otherwise specifically provided in this Agreement,
no waiver by either party hereto of any breach by the other party
hereto of any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of a subsequent breach of
such condition or provision or a waiver of a similar or dissimilar
provision or condition at the same or at any prior or subsequent time.
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13. Severability
------------
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the
remaining provisions and portions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
14. Successors to the Company
-------------------------
Except as otherwise provided herein, this Agreement shall be
binding upon and inure to the benefit of the Company and any successor
of the Company, including, without limitation, any corporation which
acquires directly or indirectly all or substantially all of the assets
or capital stock of the Company whether by merger, consolidation, sale
or otherwise (and such successor shall thereafter be deemed the Company
for the purposes of this Agreement), but shall not otherwise be
assignable by the Company.
15. Operation of Agreement
----------------------
15.01 EFFECTIVE DATE. This Agreement is effective April 24, 2000.
15.02 CHANGE IN CONTROL. For the purpose of this Agreement, the term
"Change in Control" of the Company shall mean a change in control of a
nature that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934 as in effect on the date of this Agreement;
provided that, without limitation, such a change in control shall be
deemed to have occurred if and when (a) any "person" (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934), excluding The Pioneer Stock Benefit Trust, any employee benefit
plan of the Company, any trust established under any employee benefit
plan of the Company, or any trustee of any trust established under any
employee benefit plan of the Company, is or becomes a beneficial owner,
directly or indirectly, of securities of the Company representing
twenty percent (20%) or more of the combined voting power of the
Company's then outstanding securities, or (b) during any period of
twelve (12) consecutive months, commencing before or after the date of
this Agreement, individuals who, at the beginning of such twelve (12)
month period were directors of the Company for whom Billick, as a
shareholder, shall have voted, cease for any reason to constitute at
least a majority of the Board of Directors of the Company.
15.03 GOOD REASON. For the purpose of this Agreement, "Good Reason"
shall mean the occurrence of: (a) any reduction in Billick's position,
authority or title; (b) any material reduction in Billick's
responsibilities or duties for the Company; (c) any material adverse
change or reduction in the aggregate perquisites, benefits and payments
to which Billick is entitled pursuant to Sections 4.02 and 5.01 hereof;
(d) any relocation of Billick's principal place of work with the
Company to a location that exceeds by fifty (50) miles the distance
from the location of his residence at the time of such relocation of
Billick's principal place of work with the Company to 6065 Parkland
Boulevard, Mayfield
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Heights, Ohio; or (e) the material breach or material default by the
Company of any of its agreements or obligations under any provision of
this Agreement, unless such breach or default is substantially cured
within a reasonable period of time (hereby defined as thirty (30) days)
after written notice advising the Company of the acts or omissions
constituting such breach or default is actually received by the
Company. As used in Section 15.03(c), an "adverse change or material
reduction" in the aggregate perquisites, benefits and payments to which
Billick is entitled pursuant to Sections 4.02 and 5.01 shall be deemed
to result from any reduction or any series of reductions which, in the
aggregate, exceeds five percent (5%) of the value of such perquisites,
benefits and payments determined as of the date of this Agreement. If
Billick claims the existence of a Good Reason, he shall give written
notice to the Company of the event constituting Good Reason not later
than ninety (90) days following the later to occur of the occurrence of
the event (e.g., the actual reduction in compensation, the scheduled
date of relocation or the date of the breach) constituting Good Reason
or his actual knowledge thereof. If the event which Billick claims to
be a Good Reason is not cured within thirty (30) days following the
date of such notice, Billick must resign within ten (10) days following
the thirty (30) day cure period in order to invoke his right to resign
for Good Reason. If no such timely resignation occurs or no such timely
written notices are given, Billick's right to resign for Good Reason
with respect to such event shall be permanently waived.
16. Enforcement Costs
-----------------
The Company is aware that upon the occurrence of a Change in
Control the Board of Directors or a shareholder of the Company may then
cause or attempt to cause the Company to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the
Company to institute, or may institute, litigation seeking to have this
Agreement declared unenforceable, or may take, or attempt to take,
other action to deny Billick the benefits intended under this
Agreement. In these circumstances, the purpose of this Agreement could
be frustrated. It is the intent of the Company that Billick not be
required to incur the expenses associated with the enforcement of his
rights under this Agreement by litigation or other legal action because
the cost and expense thereof would substantially detract from the
benefits intended to be extended to Billick hereunder, nor be bound to
negotiate any settlement of his rights hereunder under threat of
incurring such expenses. Accordingly, if following a Change in Control
it should appear to Billick that the Company has failed to comply with
any of its obligations under this Agreement or in the event that the
Company or any other person takes any action to declare this Agreement
void or unenforceable, or institutes any litigation or other legal
action designed to deny, diminish or to recover from, Billick, the
benefits intended to be provided to Billick hereunder, and that Billick
has complied with all of his obligations under this Agreement, the
Company irrevocably authorizes Billick from time to time to retain
counsel of his choice at the expense of the Company as provided in this
Section 16, to represent Billick in connection with the initiation or
defense of any litigation or other legal action, whether by or against
the Company or any Director, officer, shareholder or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any
existing or prior attorney-client relationship between the Company and
such counsel, the Company irrevocably consents to Billick entering into
an attorney-client relationship with
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such counsel, and in that connection the Company and Billick agree that
a confidential relationship shall exist between Billick and such
counsel. The reasonable fees and expenses of counsel selected from time
to time by Billick as herein provided shall be paid or reimbursed to
Billick by the Company on a regular, periodic basis upon presentation
by Billick of a statement or statements prepared by such counsel in
accordance with its customary practices, up to a maximum aggregate
amount of $500,000.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ATTEST: PIONEER-STANDARD ELECTRONICS, INC.
/s/ Nancy E. Hoyt /s/ James L. Bayman
- --------------------- --------------------------------
James L. Bayman, Chairman and Chief
Executive Officer
ATTEST:
/s/ Nancy E. Hoyt /s/ Steven M. Billick
- --------------------- -------------------------------------
Steven M. Billick
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