Exhibit 10.1
EMPLOYMENT AGREEMENT made as of the 1st day of February, 2007 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 JOHN P.
McMAHON, residing 6 Whistler Lane, Southborough, Massachusetts 01772 (the
"Executive"). WHEREAS, the Company desires to employ the Executive, and the
Executive desires to be employed by the Company, as a Senior Vice President,
Human Resources, 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 Senior Vice President, Human Resources, 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 a Senior Vice President, Human Resources).
If the Board of Directors does not either continue the Executive in the
office of a Senior Vice President, Human Resources, 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.
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(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 $375,000 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;
(ii) such additional compensation by way of salary or bonus or
fringe benefits 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; and
(iii)such employee benefits that are made available by the Company
to its other executives generally.
(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 $225,000 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.
(c) Supplemental Executive Retirement Plan. The Executive shall
participate in the Company's Unfunded Pension Plan for Selected Executives (the
"SERP").
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(d) Automobile. While the Executive is actively working for the
Company, the Company will pay the Executive a monthly automobile allowance of
$850.
(e) 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.
(f) Office and Staff. The Company will provide the Executive with an
office, secretary and such other facilities as may be reasonably required for
the proper discharge of his duties hereunder.
(g) 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.
(h) Participation in Plans. Notwithstanding any other provision of this
Agreement, the Executive shall have the right to participate in any and all of
the plans or programs made available by the Company (or it subsidiaries,
divisions or affiliates) to, or for the benefit of, executives (including the
annual stock option and restricted stock grant programs) or employees in
general, on a basis consistent with other senior executives.
(i) Mortgage Subsidy. To assist you with your move to New York, the
Company will provide you with a 3-year mortgage subsidy. This subsidy will
provide you with the following financial support: Year 1: $24,000.00; Year 2:
$18,000.00; Year 3: $12,000.00. This mortgage subsidy is paid directly to the
mortgage provider and is designed to offset your monthly mortgage payment for a
three-year period, so long as you remain an employee of the Company. It is also
subject to standard withholdings.
3. The Employment Period.
The "Employment Period," as used in the Agreement, shall mean the period
beginning March 12, 2007 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
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(d) March 31, 2009; 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 18th and 12th 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.
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, active fraud or gross
negligence by the Executive in connection with his employment hereunder, the
Company shall have the right to terminate the Employment Period by giving the
Executive notice in writing of the reason for such proposed termination. If the
Executive shall not have corrected such conduct to the satisfaction of the
Company within thirty days after 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.
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6. Termination Without Cause.
In the event that the Company discharges the Executive without cause prior
to the expiration of the Employment Period, the Executive's post-discharge
compensation and benefits will be as follows, subject to the Executive's
execution of a release as set forth in Paragraph 7 below:
(a) The Executive will be placed on inactive or "RA" status beginning
on the day following his last day of active work and ending on the earliest of
(i) the date the Employment Period was scheduled to expire, (ii) the day the
Executive begins employment for a person or entity other than the Company, or
(iii) the day the Executive fails to observe any provision of this Agreement,
including his obligations under Paragraphs 8 and 9 (the "RA Period), during
which time he will be paid the salary provided in subparagraph 2(a) on the same
schedule as if he still were an active employee (less the customary deductions),
subject to any required delay described in subparagraph (c) below;
(b) The Executive will be paid an amount equal to two-thirds of the
targeted incentive provided in Paragraph 2(b) for the year in which he ceases
active employment and for each succeeding year (or, on a pro rata basis, portion
of a year) during the RA Period, payable on March 31 following the end of the
year to which such targeted incentive relates if the Executive is still on RA
status on the scheduled payment date or, in the case of the year during which RA
status terminates, if the Executive is still on RA status on the last day of the
RA Period, subject to any required delay described in subparagraph (c) below;
(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 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.
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(e) The Executive's active participation in the Company's 401(k) Plan,
ESOP and SERP 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 his 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.
(f) The Executive will remain covered by the Company medical plan
during the RA Period under the same terms and conditions as an active employee.
At the end of the RA Period the Executive will be entitled to continuation
coverage for herself and his eligible dependents under the plan's COBRA
provisions at his own expense. The Executive's participation in all other
welfare benefit and fringe benefit plans of the Company will end on the day he
ceases active work, subject to any conversion rights generally available to
former employees under the terms of such plans.
Any amounts payable to the Executive under this Paragraph 6 shall be
reduced by the amount of the Executive's earnings from other employment (which
the Executive shall have an affirmative duty to seek; provided, however, that
the Executive shall not be obligated to accept a new position which is not
reasonable comparable to his employment with the Company).
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:
"John P. McMahon (the "Executive") and Arrow Electronics, Inc. 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 February 1, 2007.
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."
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 35 days
following the Executive's last day of active work. The Company will provide to
the Executive an executed release in the same form promptly upon receipt of the
release signed by the Executive. If the Executive fails to provide the executed
release by the expiration of such 35-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.
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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 United States,
Canada or Mexico (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).
(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.
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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.
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.
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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.
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 which any of them may have.
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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.
(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.
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(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:
John P. McMahon
6 Whistler Lane
Southborough, MA 01772
(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.
ARROW ELECTRONICS, INC.
By: /s/ Peter S. Brown
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Peter S. Brown
Senior Vice President &
General Counsel
THE EXECUTIVE
/s/ John P. McMahon
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EXECUTIVE
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