EXHIBIT 10.1
EMPLOYMENT AGREEMENT made as of the 1st day of September, 2006
by and between ARROW ELECTRONICS, INC., a New York corporation with its
principal office at 50 Marcus Drive, Melville, New York 11747 (the "Company"),
and PHILIPPE COMBES, residing at 47 Route de Clementy, 1260 Nyon Switzerland
(the "Executive").
WHEREAS, the Company desires to employ the Executive, and the
Executive desires to be employed by the Company, as a Vice President of the
Company, with the responsibilities and duties of an executive officer of the
Company; and
WHEREAS, the Company and the Executive wish to provide for the
employment of the Executive as an employee of the Company and for him to render
services to the Company on the terms set forth in, and in accordance with the
provisions of, this Employment Agreement (the "Agreement"), which Employment
Agreement shall supersede and replace any agreement pertaining to the
Executive's employment by the Company, written or oral, entered into prior to
the date hereof;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties agree as follows:
1. Employment and Duties.
----------------------
(a) Employment. The Company hereby employs the Executive for
the Employment Period defined in Paragraph 3, to perform such duties for the
Company and its subsidiaries and affiliates and to hold such offices as may be
specified from time to time by the Company's Board of Directors, subject to the
following provisions of this Agreement. The Executive hereby accepts such
employment.
(b) Duties and Responsibilities. It is contemplated that the
Executive will be a Vice President of the Company, but the Board of Directors
shall have the right to adjust the duties, responsibilities, and title of the
Executive as the Board of Directors may from time to time deem to be in the
interests of the Company (provided, however, that during the Employment Period,
without the consent of the Executive, he shall not be assigned any titles,
duties or responsibilities which, in the aggregate, represent a material
diminution in, or are materially inconsistent with, his prior title, duties, and
responsibilities as Vice President).
If the Board of Directors does not either continue the
Executive in the office of Vice President or elect him to some other executive
office satisfactory to the Executive, the Executive shall have the right to
decline to give further service to the Company and shall have the rights and
obligations which would accrue to him under Paragraph 6 if he were discharged
without cause. If the Executive decides to exercise such right to decline to
give further service, he shall within forty-five days after such action or
omission by the Board of Directors give written notice to the Company stating
his objection and the action he thinks necessary to correct it, and he shall
permit the Company to have a forty-five day period in which to correct its
action or omission. If the Company makes a correction satisfactory to the
Executive, the Executive shall be obligated to continue to serve the Company. If
the Company does not make such a correction, the Executive's rights and
obligations under Paragraph 6 shall accrue at the expiration of such forty-five
day period.
-1-
(c) Time Devoted to Duties. The Executive shall devote all of
his normal business time and efforts to the business of the Company, its
subsidiaries and its affiliates, the amount of such time to be sufficient, in
the reasonable judgment of the Board of Directors, to permit him diligently and
faithfully to serve and endeavor to further their interests to the best of his
ability.
2. Compensation.
------------
(a) Monetary Remuneration and Benefits. During the Employment
Period, the Company shall pay to the Executive for all services rendered by him
in any capacity:
(i) a minimum base salary of E340,875.00 per
year (payable in accordance with the Company's then prevailing practices, but in
no event less frequently than in equal monthly installments), subject to
increase if the Board of Directors of the Company in its sole discretion so
determines; provided that, should the Company institute a Company-wide pay
cut/furlough program, such salary may be decreased by up to 15%, but only for as
long as said Company-wide program is in effect; and
(ii) such additional compensation by way of salary or
bonus or fringe benefits as are set forth herein or, to the extent the same are
not paid to the Executive under the German employment agreement, in the Offer
Term Sheet attached hereto as Annex A (the "Term Sheet") and otherwise as the
Board of Directors of the Company in its sole discretion shall authorize or
agree to pay, payable on such terms and conditions as it shall determine.
(b) Annual Incentive Payment. The Executive shall participate
in the Company's Management Incentive Plan (or such alternative, successor, or
replacement plan or program in which the Company's principal operating
executives, other than the Chief Executive Officer, generally participate) and
shall have a targeted incentive thereunder of not less than E255,657.00 per
year; provided, however, that the Executive's actual incentive payment for any
year shall be measured by the Company's performance against goals established
for that year and that such performance may produce an incentive payment ranging
from none to 200% of the targeted amount. The Executive's incentive payment for
any year will be appropriately pro-rated to reflect a partial year of
employment. The Executive's incentive payment for the period September 1, 2006
through August 31, 2007 shall be guaranteed at a minimum of E255,657.00.
(c) Automobile. While the Executive is actively working for
the Company, the Company will pay the Executive an annual automobile allowance
of at least E8,100. (The Company is currently reviewing the competitiveness
of this amount.)
(d) Expenses. During the Employment Period, the Company agrees
to reimburse the Executive, upon the submission of appropriate vouchers, for
out-of-pocket expenses (including, without limitation, expenses for travel,
lodging and entertainment) incurred by the Executive in the course of his duties
hereunder.
-2-
(e) Indemnification. The Company agrees to indemnify, defend
and hold harmless the Executive for any and all liabilities to which he may be
subject as a result of his employment hereunder (and as a result of his service
as an officer or director of the Company, or as an officer or director of any of
its subsidiaries or affiliates), as well as the costs of any legal action
brought or threatened against him as a result of such employment, to the fullest
extent permitted by law.
(f) Initial Bonus and Equity Awards. The Company will pay the
Executive the E198,509.00 sign-on bonus referenced in the Term Sheet within
the first 30 days of his employment with the Company, which amount shall be
repaid in full by the Executive if he resigns for any reason (other than a
permitted resignation described in subparagraph 1(b) of this Agreement) during
the first 12 months of his employment with the Company. In addition, as soon as
practical following the commencement of the Executive's employment, the
Company's Compensation Committee will award the Executive the 20,000 shares of
restricted stock of the Company and 30,000 non-qualified stock options, each
pursuant to the terms of the Company's 2004 Omnibus Incentive Plan, which shares
and options will both vest separately at the rate of 25% on each anniversary of
the date of the award (until fully vested in the year 2010) while the Executive
is employed by the Company.
3. The Employment Period.
----------------------
The "Employment Period," as used in the Agreement, shall mean
the period beginning as of the date hereof and terminating on the last day of
the calendar month in which the first of the following occurs:
(a) the death of the Executive;
(b) the disability of the Executive as determined in
accordance with Paragraph 4 hereof and subject to the provisions thereof;
(c) the termination of the Executive's employment by
the Company for cause in accordance with Paragraph 5 hereof; or
(d) August 31, 2008; provided, however, that, unless
sooner terminated as otherwise provided herein, the Employment Period shall
automatically be extended for one or more twelve (12) month periods beyond the
then scheduled expiration date thereof unless between the 12th and 6th month
preceding such scheduled expiration date either the Company or the Executive
gives the other written notice of its or his election not to have the Employment
Period so extended. In consideration of the undertakings given by the Executive
in Paragraphs 7 and 8, if the Company gives notice of non-renewal, the Executive
will be entitled to receive the lump-sum payments described in Paragraph 6(a)
and 6(b) below (and otherwise in accordance with the terms of Paragraph 6) at
the end of the Employment Period. For the avoidance of doubt, if the Executive
gives notice of non-renewal, the Executive shall not be entitled to such
payments.
-3-
4. Disability.
-----------
For purposes of this Agreement, the Executive will be deemed
"disabled" upon the earlier to occur of (i) his becoming disabled as defined
under the terms of the disability benefit program applicable to the Executive,
if any, and (ii) his absence from his duties hereunder on a full-time basis for
one hundred eighty (180) consecutive days as a result of his incapacity due to
accident or physical or mental illness. If the Executive becomes disabled (as
defined in the preceding sentence), the Employment Period shall terminate on the
last day of the month in which such disability is determined. Until such
termination of the Employment Period, the Company shall continue to pay to the
Executive his base salary, any additional compensation authorized by the
Company's Board of Directors, and other remuneration and benefits provided in
accordance with Paragraph 2 hereof, all without delay, diminution or proration
of any kind whatsoever (except that his remuneration hereunder shall be reduced
by the amount of any payments he may otherwise receive as a result of his
disability pursuant to a disability program provided by or through the Company),
and his medical benefits and life insurance shall remain in full force. After
termination of the Employment Period as a result of the disability of the
Executive, the medical benefits covering the Executive and his family shall
remain in place (subject to the eligibility requirements and other conditions
continued in the underlying plan, as described in the Company's employee
benefits manual, and subject to the requirement that the Executive continue to
pay the "employee portion" of the cost thereof), and the Executive's life
insurance policy under the Management Insurance Program shall be transferred to
him, as provided in the related agreement, subject to the obligation of the
Executive to pay the premiums therefor.
In the event that, notwithstanding such a determination of
disability, the Executive is determined not to be totally and permanently
disabled prior to the then scheduled expiration of the Employment Period, the
Executive shall be entitled to resume employment with the Company under the
terms of this Agreement for the then remaining balance of the Employment Period.
5. Termination for Cause.
----------------------
In the event of any malfeasance, willful misconduct, fraud or
gross negligence by the Executive in connection with his employment hereunder,
the Company shall have the right to immediately terminate the Employment Period
by giving the Executive notice in writing of the reason for such proposed
termination. Upon such notice, the Employment Period shall terminate and the
Company shall have no further obligation to the Executive hereunder but the
restriction on the Executive's activities contained in Paragraph 8 and the
obligations of the Executive contained in Paragraphs 9(b) and 9(c) shall
continue in effect as provided therein.
6. Termination Without Cause.
--------------------------
In the event that the Company wishes to discharge the
Executive without cause prior to the expiration of the Employment Period, the
Company will give the Executive six months notice in writing (or an additional
six months compensation as described in this Paragraph 6 in lieu of such
notice). In the case of a discharge without cause, subject to the Executive's
execution of a release as set forth in Paragraph 7 below and in consideration of
the undertakings given by the Executive in Paragraph 8, the Executive shall
receive the following compensation:
-4-
(a) An amount equal to 18 months base salary at the rate
then in effect; and
(b) An amount equal to 1.5 times the Executive's annual
targeted incentive as in effect at such time;
(c) Notwithstanding the provisions of subparagraphs
(a) and (b) above, if the Executive is a "specified employee" under section 409A
of the Internal Revenue Code of 1986, as amended ("Code"), no payment of
deferred compensation within the meaning of Code section 409A will be paid to
the Executive on account of his termination of employment for 6 months following
the day he ceases active work, and any such payments due during such 6-month
period will be held and paid on the first business day following completion of
such 6-month period, along with interest calculated at the 6-month Treasury rate
in effect at the beginning of the RA Period;
(d) Any unvested stock options, restricted stock or
performance shares held by the Executive on his last day of active work that
would have vested by the scheduled expiration of the Employment Period had the
Executive not been discharged without cause will vest on his last day of active
work subject to the payment by the Executive of all applicable taxes. Any vested
stock option will remain exercisable after the Executive ceases active work in
accordance with the terms of the applicable award relating to post-termination
exercise. Any stock options, performance shares or restricted stock not already
vested on the Executive's last day of active work or vested on such last day in
accordance with this subparagraph (d) will be forfeited on the Executive's last
day of active work.
(e) The Executive's active participation in the
Company's 401(k) Plan and ESOP will end on his last day of active work, and he
will earn no vesting service and no additional benefits under those plans after
that date. For purposes of receiving a distribution of any vested account
balance under the 401(k) Plan or ESOP, the Executive will be considered to have
severed from service with the Company on his last day of active work.
7. Release.
--------
In consideration for the payments and benefits set forth in
Paragraph 6, Executive agrees to execute and return to the Company a release in
the following form:
"Philippe Combes (the "Executive") and Arrow Europe GmbH and
its affiliates ("Arrow") each hereby releases the other and its agents,
directors and employees from and against any and all claims (statutory,
contractual or otherwise) arising out of the Executive's employment or the
termination thereof or any discrimination in connection therewith and for any
further additional payments of any kind or nature whatsoever except as expressly
set forth in the employment agreement between the Executive and Arrow dated
September 1st, 2006. Without limiting the foregoing, the Executive hereby
releases Arrow from any claim under the Age Discrimination in Employment Act and
any other similar law.
Nothing contained herein will be construed as impacting the
Executive's right to claim unemployment benefits on account of his termination
of employment with Arrow, if any, or preventing the Executive or Arrow from
providing information to or making a claim with any governmental agency to the
extent permitted or required by law. This release will, however, constitute an
absolute bar to the recovery of any damages or additional compensation,
consideration or relief of any kind or nature whatsoever arising out of or in
connection with such claim.
-5-
Notwithstanding the foregoing, this release and waiver of
claims shall not apply to any act of fraud, criminal conduct or malfeasance by
the Executive."
The executed release required by this Paragraph 7 as a
condition for payment under Paragraph 6 shall be given to the Company no later
than 30 days following the Executive's last day of active work. If the Executive
fails to provide the executed release by the expiration of such 30-day period,
the Executive will forfeit any payments or benefits still due under Paragraph 6,
including but not limited to any unexercised stock options the vesting of which
was accelerated pursuant to the terms of Paragraph 6.
8. Non-Disclosure; Non-Competition; Trade Secrets.
-----------------------------------------------
During the Employment Period and for a period of two years
after the termination of the Employment Period, the Executive will not, directly
or indirectly:
(a) Disclosure of Information. Use, attempt to use,
disclose or otherwise make known to any person or entity (other than to the
Board of Directors of the Company or otherwise in the course of the business of
the Company, its subsidiaries or affiliates and except as may be required by
applicable law):
(i) any knowledge or information, including, without
limitation, lists of customers or suppliers, trade secrets, know-how,
inventions, discoveries, processes and formulae, as well as all data and records
pertaining thereto, which he may acquire in the course of his employment, in any
manner which may be detrimental to or cause injury or loss to the Company, its
subsidiaries or affiliates; or
(ii) any knowledge or information of a confidential
nature (including all unpublished matters) relating to, without limitation, the
business, properties, accounting, books and records, trade secrets or memoranda
of the Company, its subsidiaries or affiliates, which he now knows or may come
to know in any manner which may be detrimental to or cause injury or loss to the
Company, its subsidiaries or affiliates.
(b) Non-Competition. Engage or become interested in
the Europe (whether as an owner, shareholder, partner, lender or other investor,
director, officer, employee, consultant or otherwise) in the business of
distributing electronic parts, components, supplies or systems, or any other
business that is competitive with the principal business or businesses then (or,
in the case of the post-termination covenant, as of the date of termination)
conducted by the Company, its subsidiaries or affiliates (provided, however,
that nothing contained herein shall prevent the Executive from acquiring or
owning less than 1% of the issued and outstanding capital stock or debentures of
a corporation whose securities are listed on the New York Stock Exchange,
American Stock Exchange, or the National Association of Securities Dealers
Automated Quotation System, if such investment is otherwise permitted by the
Company's Human Resource and Conflict of Interest policies).
-6-
(c) Solicitation. Solicit or participate in the
solicitation of any business of any type conducted by the Company, its
subsidiaries or affiliates, during said term or thereafter, from any person,
firm or other entity which is or was at any during the preceding 12 months (or,
in the case of the post-termination covenant, during the 12 months preceding the
date of termination) a supplier or customer, or prospective supplier or
customer, of the Company, its subsidiaries or affiliates; or
(d) Employment. Employ or retain, or arrange to have
any other person, firm or other entity employ or retain, or otherwise
participate in the employment or retention of, any person who was an employee or
consultant of the Company, its subsidiaries or affiliates, at any time during
the period of twelve consecutive months immediately preceding such employment or
retention.
The Executive will promptly furnish in writing to the Company,
its subsidiaries or affiliates, any information reasonably requested by the
Company (including any third party confirmations) with respect to any activity
or interest the Executive may have in any business.
Except as expressly herein provided, nothing contained herein
is intended to prevent the Executive, at any time after the termination of the
Employment Period, from either (i) being gainfully employed or (ii) exercising
his skills and abilities outside of such geographic areas, provided in either
case the provisions of this Agreement are complied with.
9. Preservation of Business.
-------------------------
(a) General. During the Employment Period, the Executive will
use his best efforts to advance the business and organization of the Company,
its subsidiaries and affiliates, to keep available to the Company, its
subsidiaries and affiliates, the services of present and future employees and to
advance the business relations with its suppliers, distributors, customers and
others.
(b) Patents and Copyrights, etc. The Executive agrees, without
additional compensation, to make available to the Company all knowledge
possessed by him relating to any methods, developments, inventions, processes,
discoveries and/or improvements (whether patented, patentable or unpatentable)
which concern in any way the business of the Company, its subsidiaries or
affiliates, whether acquired by the Executive before or during his employment
hereunder, provided that the Executive shall not disclose to the Company any
such knowledge acquired by the Executive prior to his employment by the Company
and which is owned by a third party.
-7-
Any methods, developments, inventions, processes, discoveries
and/or improvements (whether patented, patentable or unpatentable) which the
Executive may conceive of or make, related directly or indirectly to the
business or affairs of the Company, its subsidiaries or affiliates, or any part
thereof, during the Employment Period, shall be and remain the property of the
Company. The Executive agrees promptly to communicate and disclose all such
methods, developments, inventions, processes, discoveries and/or improvements to
the Company and to execute and deliver to it any instruments deemed necessary by
the Company to effect the disclosure and assignment thereof to it. The Executive
also agrees, on request and at the expense of the Company, to execute patent
applications and any other instruments deemed necessary by the Company for the
prosecution of such patent applications or the acquisition of Letters Patent in
the United States or any other country and for the assignment to the Company of
any patents which may be issued. The Company shall indemnify and hold the
Executive harmless from any and all costs, expenses, liabilities or damages
sustained by the Executive by reason of having made such patent applications or
being granted such patents.
Any writings or other materials written or produced by the
Executive or under his supervision (whether alone or with others and whether or
not during regular business hours), during the Employment Period which are
related, directly or indirectly, to the business or affairs of the Company, its
subsidiaries or affiliates, or are capable of being used therein, and the
copyright thereof, common law or statutory, including all renewals and
extensions, shall be and remain the property of the Company. The Executive
agrees promptly to communicate and disclose all such writings or materials to
the Company and to execute and deliver to it any instruments deemed necessary by
the Company to effect the disclosure and assignment thereof to it. The Executive
further agrees, on request and at the expense of the Company, to take any and
all action deemed necessary by the Company to obtain copyrights or other
protections for such writings or other materials or to protect the Company's
right, title and interest therein. The Company shall indemnify, defend and hold
the Executive harmless from any and all costs, expenses, liabilities or damages
sustained by the Executive by reason of the Executive's compliance with the
Company's request.
(c) Return of Documents. Upon the termination of the
Employment Period, including any termination of employment described in
Paragraph 6, the Executive will promptly return to the Company all copies of
information protected by Paragraph 9(a) hereof or pertaining to matters covered
by subparagraph (b) of this Paragraph 9, which are in his possession, custody or
control, whether prepared by him or others.
10. Separability.
-------------
The Executive agrees that the provisions of Paragraphs 8 and 9
hereof constitute independent and separable covenants which shall survive the
termination of the Employment Period and which shall be enforceable by the
Company notwithstanding any rights or remedies the Executive may have under any
other provisions hereof. The Company agrees that the provisions of Paragraph 6
hereof constitute independent and separable covenants which shall survive the
termination of the Employment Period and which shall be enforceable by the
Executive notwithstanding any rights or remedies the Company may have under any
other provisions hereof.
-8-
11. Specific Performance.
---------------------
The Executive acknowledges that (i) the services to be
rendered under the provisions of this Agreement and the obligations of the
Executive assumed herein are of a special, unique and extraordinary character;
(ii) it would be difficult or impossible to replace such services and
obligations; (iii) the Company, its subsidiaries and affiliates will be
irreparably damaged if the provisions hereof are not specifically enforced; and
(iv) the award of monetary damages will not adequately protect the Company, its
subsidiaries and affiliates in the event of a breach hereof by the Executive.
The Company acknowledges that (i) the Executive will be irreparably damaged if
the provisions of Paragraphs 6 hereof are not specifically enforced and (ii) the
award of monetary damages will not adequately protect the Executive in the event
of a breach thereof by the Company. By virtue thereof, the Executive agrees and
consents that if he violates any of the provisions of this Agreement, and the
Company agrees and consents that if it violates any of the provisions of
Paragraphs 6 hereof, the other party, in addition to any other rights and
remedies available under this Agreement or otherwise, shall (without any bond or
other security being required and without the necessity of proving monetary
damages) be entitled to a temporary and/or permanent injunction to be issued by
a court of competent jurisdiction restraining the breaching party from
committing or continuing any violation of this Agreement, or any other
appropriate decree of specific performance. Such remedies shall not be exclusive
and shall be in addition to any other remedy that any of them may have.
12. Miscellaneous.
--------------
(a) Entire Agreement; Amendment. This Agreement
constitutes the whole employment agreement between the parties and may not be
modified, amended or terminated except by a written instrument executed by the
parties hereto. It is specifically agreed and understood, however, that the
provisions of that certain letter agreement dated as of September 1, 2006
granting to the Executive extended separation benefits in the event of a change
in control of the Company shall survive and shall not be affected hereby. All
other agreements between the parties pertaining to the employment or
remuneration of the Executive not specifically contemplated hereby or
incorporated or merged herein are terminated and shall be of no further force or
effect.
(b) Assignment. Except as stated below, this
Agreement is not assignable by the Company without the written consent of the
Executive, or by the Executive without the written consent of the Company, and
any purported assignment by either party of such party's rights and/or
obligations under this Agreement shall be null and void; provided, however,
that, notwithstanding the foregoing, the Company may merge or consolidate with
or into another corporation, or sell all or substantially all of its assets to
another corporation or business entity or otherwise reorganize itself, provided
the surviving corporation or entity, if not the Company, shall assume this
Agreement and become obligated to perform all of the terms and conditions
hereof, in which event the Executive's obligations shall continue in favor of
such other corporation or entity.
(c) Waivers, etc. No waiver of any breach or default
hereunder shall be considered valid unless in writing, and no such waiver shall
be deemed a waiver of any subsequent breach or default of the same or similar
nature. The failure of any party to insist upon strict adherence to any term of
this Agreement on any occasion shall not operate or be construed as a waiver of
the right to insist upon strict adherence to that term or any other term of this
Agreement on that or any other occasion.
-9-
(d) Provisions Overly Broad. In the event that any
term or provision of this Agreement shall be deemed by a court of competent
jurisdiction to be overly broad in scope, duration or area of applicability, the
court considering the same shall have the power and hereby is authorized and
directed to modify such term or provision to limit such scope, duration or area,
or all of them, so that such term or provision is no longer overly broad and to
enforce the same as so limited. Subject to the foregoing sentence, in the event
any provision of this Agreement shall be held to be invalid or unenforceable for
any reason, such invalidity or unenforceability shall attach only to such
provision and shall not affect or render invalid or unenforceable any other
provision of this Agreement.
(e) Notices. Any notice permitted or required
hereunder shall be in writing and shall be deemed to have been given on the date
of delivery or, if mailed by registered or certified mail, postage prepaid, on
the date of mailing:
(i) if to the Executive to:
Philippe Combes
47 Route de Clementy
1260 Nyon Switzerland
(ii) if to the Company to: Arrow Electronics, Inc.
50 Marcus Drive
Melville, New York 11747
Attention: Peter S. Brown
Senior Vice President and
General Counsel
Either party may, by notice to the other, change his or its address for notice
hereunder.
(f) New York Law. This Agreement shall be construed
and governed in all respects by the internal laws of the State of New York,
without giving effect to principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
Attest: ARROW ELECTRONICS, INC.
By:
- ----------------------- ------------------------
Assistant Secretary Peter S. Brown
Senior Vice President &
General Counsel
THE EXECUTIVE
--------------------------
Philippe Combes
-10-