EXHIBIT 10(ee)
[PIONEER STANDARD LETTERHEAD]
Pioneer-Standard Electronics, Inc.
AMENDMENT NO. 1 TO CHANGE OF CONTROL AGREEMENT
AND NON-COMPETITION AGREEMENT
THIS AMENDMENT NO. 1 TO CHANGE OF CONTROL AGREEMENT AND
NON-COMPETITION AGREEMENT ("Amendment") by and between Pioneer-Standard
Electronics, Inc., an Ohio corporation (the "Company"), and Robert J. Bailey
(the "Employee"), is dated as of the 30th day of January, 2003.
WHEREAS, the Company and the Employee are parties to a Change
of Control Agreement dated as of February 25, 2000 (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 (the "Non-Competition
Agreement"); and
WHEREAS, the Company and the Employee desire that certain
modifications be made to the Change of Control Agreement, in consideration for
which the Company and the Employee have agreed to certain modifications to the
Non-Competition Agreement; and
WHEREAS, Section 8(c) of the Change of Control Agreement and
Section 9 of the Non-Competition Agreement permit the parties thereto to amend
such agreement, respectively, in a writing signed by each party.
1
NOW, THEREFORE, in consideration of the parties' mutual desire
to modify the Change of Control Agreement and the Non-Competition Agreement, and
the mutual covenants herein contained, the parties agree as follows effective as
of the date of execution of this Agreement:
PART I - CHANGE OF CONTROL AGREEMENT
Part I of this Amendment shall amend the terms of the Change
of Control Agreement as set forth herein. Capitalized terms used in this Part I
not otherwise defined shall have the meanings ascribed to them in the Change of
Control Agreement.
1. The introductory paragraph to Section 3.1 of the
Change of Control Agreement shall be deleted, and the following shall be
inserted therefor:
"3.1. Without Cause. If, at any time prior to the date that is
twelve (12) months subsequent to the Effective Date, the
Employee's employment with the Company shall be terminated
either (i) by the Company without Cause, or (ii) by the
Employee for Good Reason, in accordance with Section 3.4
below:"
2. Section 3.2 of the Change of Control Agreement shall
be deleted, and the following shall be inserted therefor:
"3.2. Cause or Voluntary Termination. If the Employee's
employment shall be terminated either (i) by the Company for
Cause or (ii) by the Employee voluntarily other than for Good
Reason in accordance with Section 3.4 below, this Agreement
shall terminate without further obligations of the Company to
the Employee hereunder."
3. After Section 3.3 of the Change of Control Agreement,
a new paragraph 3.4 shall be inserted, as follows:
"3.4. Good Reason. As used herein, "Good Reason" shall mean
(a) any material adverse change in Employee's
responsibilities; (b) substantial reduction in target annual
compensation; or (c) any requirement that Employee relocate to
a facility that is more than 50 miles from his current
location. If the Employee claims that he is terminating his
employment
for Good Reason, then the Employee may, within 30 days of the
event constituting Good Reason, give written notice to the
company of the Employee's intent to terminate his employment
for Good Reason. If the event which the Employee claims to
constitute Good Reason is not cured within 30 days following
the date of such notice (the "Cure Period"), the employee
shall have 10 days following the Cure Period to invoke his
right to terminate his employment for Good Reason. If the
Employee fails to provide timely written notice, or if
Employee fails to terminate his employment within 10 days
following the Cure Period, then the Employee's right to
terminate employment for Good Reason with respect to such
event shall be permanently waived.
PART II - NON-COMPETITION AGREEMENT
Part II of this Amendment shall amend the terms of the
Non-Competition Agreement as set forth herein. Capitalized terms used in this
Part II not otherwise defined shall have the meanings ascribed to them in the
Non-Competition Agreement.
3. Section 3 of the Non-Competition Agreement shall be
deleted, and the following shall be inserted therefor:
"3. Duration. Employee may terminate this Agreement at any
time and such termination shall be effective on the date of
his or her notice, unless otherwise mutually agreed.
Similarly, the Company has the right to terminate this
Agreement and Employee's employment at any time, with or
without advance notice or cause. Should the Company terminate
the Employee's employment without cause, the Company will
continue to pay the employee monthly base salary, target
incentive and benefit coverage for twenty-four (24) months
(the 'severance payments'). In the event that (1) Employee's
employment is terminated for cause or (2) Employee voluntarily
resigns from employment with the company, then the Company
shall have no obligation for severance payments under this
provision. Absolutely no one except the President and Chief
Executive Officer of the Company may change this 'at will'
relationship, and then only in writing. Employee acknowledges
that any reliance on any representations, oral or otherwise,
contrary to 'at will' employment is unreasonable and shall not
form the basis for any actions or forbearances on his or her
part."
IN WITNESS WHEREOF, the parties have executed this Amendment
No. 1 to Change of Control Agreement and Non-Competition Agreement as of the
date first above written.
Robert J. Bailey PIONEER-STANDARD ELECTRONICS, INC.
("Employee") ("Company")
/s/ Robert J. Bailey By: /s/ Arthur Rhein
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Arthur Rhein
President and Chief Executive Officer