-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, S3BRJZutFJLkmN4P9LymESMpMV3z99+flEPLG/I392OALvaEIGbBAKLVjx6+R5Q/ DA/gvJkVXiXAl9MH0jMT2w== 0000932214-06-000198.txt : 20060525 0000932214-06-000198.hdr.sgml : 20060525 20060525162317 ACCESSION NUMBER: 0000932214-06-000198 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20060524 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060525 DATE AS OF CHANGE: 20060525 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NU HORIZONS ELECTRONICS CORP CENTRAL INDEX KEY: 0000718074 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-ELECTRONIC PARTS & EQUIPMENT, NEC [5065] IRS NUMBER: 112621097 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08798 FILM NUMBER: 06867408 BUSINESS ADDRESS: STREET 1: 70 MAXESS RD CITY: MELVILLE STATE: NY ZIP: 11747 BUSINESS PHONE: 5163965000 MAIL ADDRESS: STREET 1: 70 MAXESS ROAD STREET 2: 6000 NEW HORIZONS BLVD CITY: MELVILLE STATE: NY ZIP: 11747 8-K 1 form8k052406.txt CURRENT REPORT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: May 24, 2006 (Date of earliest event reported) Nu Horizons Electronics Corp. - ------------------------------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 001-08798 11-2621097 - ------------------------------------------------------------------------------ (State or other (Commission (IRS Employer jurisdiction of File Number) Identification incorporation) Number) 70 Maxess Road, Melville, New York 11747 - ------------------------------------------------------------------------------ (Address of principal executive offices) (Zip Code) (631) 396-5000 - ------------------------------------------------------------------------------ (Registrant's telephone number including area code) N/A ----------------------------------------------------------------------------- (Former name or former address, if changed since last report) Item 1.01 Entry into a Material Definitive Employment Agreement On May 24, 2006, Nu Horizons Electronics Corp. (the "Company") entered into an employment agreement (the "Employment Agreement") with Paul Durando, who is currently serving as a director of the Company and as its Chief Financial Officer. As previously reported in the Company's Form 8-K dated May 5, 2006, Mr. Durando is retiring as an executive officer of the Company effective July 15, 2006. Pursuant to the Employment Agreement, commencing July 15, 2006 Mr. Durando will be employed as a non-executive Vice President of the Company and will receive an annual base salary of $83,500. The term of the Employment Agreement commences July 15, 2006, the date on which Mr. Durando will cease serving as an executive officer of the Company, and continues for three years, unless sooner terminated as provided in the Employment Agreement. Upon a termination of Mr. Durando's employment without Cause (as defined in the Employment Agreement), the Company will be required to continue to pay Mr. Durando an amount equal to his current base salary through the remainder of the term of the Employment Agreement. In the case of a termination with Cause, the Company shall have no further obligations to Mr. Durando other than for accrued obligations, if any, as described in the Employment Agreement. Upon termination for death or Disability (as defined in the Employment Agreement), the Company shall pay to Mr. Durando his base salary for a two-year period or, if less, the balance of the term of the Employment Agreement. Except for Mr. Durando's current employment and service as a director and in respect of the Employment Agreement, there is no material relationship between the Company or its affiliates and Mr. Durando. Additionally, on May 25, 2006, in connection with the employment of Kurt Freudenberg as an officer effective June 5, 2006 and as the Company's Chief Financial Officer effective July 15, 2006 (as previously reported in the Company's Form 8-K dated May 5, 2006), the Company and Mr. Freudenberg entered into an agreement (the "Agreement") which provides that in the event of the termination of his employment at any time within six months following a "change in control" of the Company (as defined in the Agreement), Mr. Freudenberg will receive a lump sum equal to the amount of his base salary in effect at the time of such event, plus a pro-rata portion of his annual bonus, based on the bonus paid to him for the immediately preceding fiscal year. Except for Mr. Freudenberg's employment with the Company and in respect of the foregoing Agreement, there is no material relationship between the Company or its affiliates and Mr. Freudenberg. Item 9.01 Financial Statements and Exhibits. (c) Exhibits 10.1 Employment Agreement between Nu Horizons Electronics Corp and Paul Durando dated May 24, 2006 10.2 Employment Agreement between Nu Horizons Electronics Corp. and Kurt Freudenberg dated as of May 15, 2006 -2- SIGNATURE --------- Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Nu Horizons Electronics Corp. By: /s/Richard Schuster ------------------------ Richard Schuster President Date: May 25, 2006 -3- EX-10.1 2 durandoagt.txt EMPLOYMENT AGREEMENT EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT, made and entered into as of May 24, 2006, by and between Nu Horizons Electronics Corp., a Delaware corporation, with its principal office located at 70 Maxess Road, Melville, New York 11747 (together with its successors and assigns permitted under this Agreement, the "Company"), and Paul Durando, who resides at 31Marlin Lane, Port Washington, New York 11050 (the "Employee"). W I T N E S S E T H WHEREAS, the Company desires to enter into this Employment Agreement with the Employee to provide for the continued involvement with the Company; WHEREAS, the Employee desires to enter into this Employment Agreement. NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the Company and the Employee (individually a "Party" and together the "Parties") agree as follows: 1. DEFINITIONS. (a) "Base Salary" shall mean the annual salary to which the Employee is ----------- entitled pursuant to Section 3 below. (b) "Beneficiary" shall mean the person or persons named by the Employee ----------- pursuant to Section 18 below or, in the event that no such person is named and survives the Employee, his estate. (c) "Board" shall mean the Board of Directors of Nu Horizons Electronics ----- Corp. (d) "Cause" shall mean: (i) commission by the Employee of a material act of ----- dishonesty against the Company; (ii) a breach by the Employee of the provisions of Section 6 below; (iii) conviction of the Employee of a felony involving moral turpitude (or a plea of nolo contendere thereto); or (iv) the Employee making ---- ---------- negative or defamatory statements about the Company. The Company may terminate the Employee's employment hereunder for Cause upon written notice to the Employee not less than ten (10) business days prior to any intended termination, which notice shall specify the grounds for such termination in reasonable detail. Cause shall be deemed to exist upon a finding reflected in a resolution approved by a majority of the members of the Company's Board of Directors at a meeting of which the Employee shall have been given proper notice and at which the Employee (and his counsel) shall have a reasonable opportunity to present his case. (e) "Change in Control" shall mean: (i) a change in control as such term is presently defined in Regulation 240.12b 2 under the Securities Exchange Act of 1934 ("Exchange Act"); (ii) if during the Term of Employment any "person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act) other than the Company or any person who on the date of this Agreement is a director or officer of the Company, becomes the "beneficial owner" (as defined in Rule 13(d) 3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% of the voting power of the Company's then outstanding securities; or (iii) if during the Term of Employment, individuals who at the beginning of such period constitute the Board, including individuals who are nominated or approved by a majority of the Board then serving, cease for any reason other than death, disability or retirement to constitute at least a majority thereof. (f) "Disability" shall mean the illness or other mental or physical ---------- disability of the Employee resulting in his failure to perform substantially his duties under this Agreement for a period of nine consecutive months or more. (g) "Term of Employment" shall mean the period specified in Section 2 ------------------ below. 2. TERM OF EMPLOYMENT, POSITIONS AND DUTIES. (a) Employment. Effective as of July 15, 2006, the Company employs the ---------- Employee, and the Employee accepts employment with the Company, in the position and with the duties and responsibilities set forth below, and upon such other terms and conditions as are hereinafter stated. Simultaneously with the execution of this Agreement, the Employee shall resign from any offices with the Company and from any offices and directorships of the Company's subsidiaries in each case effective as of July 15, 2006, which resignation shall be irrevocable, and the Employee shall not be employed by the Company except as provided herein. (b) Term of Employment. The Term of Employment hereunder shall commence on ------------------ July 15, 2006 (the "Effective Date"), and shall terminate on the third anniversary thereof, unless earlier terminated in accordance with Section 5 hereof. At the end of the Term of Employment, the Employee's employment shall be terminated for all purposes. (c) Duties of Employee. Until the date of termination of his employment ------------------ hereunder, the Employee shall be employed as a Vice President of the Company; provided that Employee shall not be an "officer" of the Company under the By-Laws of the Company. The Employee shall report to either Arthur Nadata, currently the Chairman and CEO of the Company, or Richard Schuster, currently President of the Company, and in the event that both of them cease to be employed as executive officers of the Company, the Employee shall report to the Board of Directors. 3. BASE SALARY. During the Term of Employment, the Employee shall receive from the Company an annual Base Salary of $83,500, payable in accordance with the regular payroll practices of the Company but no less frequently than monthly. 4. MEDICAL BENEFIT PLANS. The Employee shall participate in the following employee benefit plans and programs for which he is eligible and which are made available to the Company's employees generally and on the terms so made available, as such plans or programs may be in effect from time to time: hospitalization insurance, surgical insurance, medical insurance, long-term care insurance and dental insurance; provided, that such medical insurance benefit shall be reduced by any amounts that are reimbursable by Medicare at such time as Employee and his spouse are eligible to be covered by Medicare. Employee agrees that he shall not be entitled to any benefits except as provided herein. 5. TERMINATION OF EMPLOYMENT. (a) General. Except as otherwise provided in this Agreement, in the ------- event of termination of the Employee's employment under this Agreement, he, his dependents or his Beneficiary, as may be the case, shall be entitled to receive benefits under the Company's employee benefit plans described in Section 4 above only until the date of such termination, in accordance with the applicable terms and conditions of each plan. (b) Termination Due to Death. In the event that the Employee's ------------------------ employment is terminated due to his death, his Beneficiary shall be entitled to the Employee's Base Salary for a two-year period or, if less, for the balance of the Term of Employment. (c) Termination Due to Disability. In the event of Disability, the ----------------------------- Company or the Employee may terminate the Employee's employment. If the Employee's employment is terminated due to Disability, he shall be entitled to his Base Salary for a two-year period or, if less, for the balance of the Term of Employment. (d) Termination by the Company for Cause. In the event that the ------------------------------------ Employee's employment is terminated for Cause, he shall be entitled solely to his Base Salary through the date of termination of his employment for Cause. (e) Termination Without Cause. ------------------------- (i) Termination Without Cause shall mean termination of the Employee's employment by the Company other than due to death, Disability or for Cause. (ii) In the event of Termination Without Cause, the Employee shall be entitled to receive his Base Salary for the remainder of the Term of Employment. (f) Termination Following Change in Control. In the event that Employee --------------------------------------- shall be terminated following a Change in Control of the Company, the Employee shall be entitled to and shall immediately receive a lump sum in an amount equal to his Base Salary for the remainder of the Term of Employment. (g) Nature of Payments. Any amounts due under this Section 5 are in the ------------------ nature of severance payments or liquidated damages or both, and shall fully compensate the Employee and his dependents or Beneficiary, as the case may be, for any and all obligations arising from the employment relationship created hereby, any lawful actions during such relationship and the termination thereof, and they are not in the nature of a penalty. 6. CONFIDENTIAL INFORMATION; NON-COMPETITION AND NON-SOLICITION. (a) Confidential Information. Employee recognizes and acknowledges that ------------------------ confidential information of various kinds, including marketing analysis and product development information are valuable, special and unique assets of the Company's business. Accordingly, Employee will not, during the term of this Agreement, except in the performance of his services hereunder, disclose any such confidential information to any individual or entity for any reason or purpose whatsoever and will not use any such confidential information for his own benefit. The provisions of this paragraph 6 will not apply to information available in trade or other publications, information known to Employee at the time he first entered the employ of the Company, and information which presently is or shall become available without the Employee committing a tortuous act. (b) Non-Competition and Non-Solicitation. Employee agrees that, during ------------------------------------ the term of this Agreement, he will not, without the prior written approval of the Board of Directors of the Company, directly or indirectly, through any other individual or entity, (a) become an officer or employee of, or render any services, including consulting services, to, any competitor of the Company, (b) solicit, raid, entice or induce any customer of the Customer to cease purchasing goods or services from the Company or to become a customer of any competitor of the Company, and Employee will not approach any customer for any such purpose or authorize the taking of any such actions by any other individual or entity, or (c) solicit, raid, entice or induce any employee of the Company, and Employee will not approach any such employee for any such purpose or authorize the taking of any such action by any other individual or entity. However, nothing contained in this paragraph 6 shall be construed as preventing Employee from purchasing or owning up to 5% of the voting securities of any corporation the stock of which is publicly traded. 7. SEVERABILITY. In case any one or more of the terms or provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other terms or provisions hereof, but such term or provision shall be deemed modified or deleted as or to the extent required by applicable law, and such modification or deletion shall not affect the validity of the other terms or provisions of this Agreement. 8. WITHHOLDING TAXES. All payments to the Employee or his Beneficiary shall be subject to withholding on account of federal, state and local taxes as required by law. If any payment hereunder is insufficient to provide the amount of such taxes required to be withheld, the Company may withhold such taxes from any other payment due the Employee or his Beneficiary. In the event that all cash payments due the Employee are insufficient to provide the required amount of such withholding taxes, the Employee or his Beneficiary, within five (5) days after written notice from the Company, shall pay to the Company the amount by which such withholding taxes exceed the cash payments due the Employee or his Beneficiary. 9. ASSIGNABILITY; BINDING NATURE. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs (in the case of the Employee) and assigns. No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company except that such rights or obligations may be assigned or transferred pursuant to (a) a merger or consolidation in which the Company is not the continuing entity; provided that it shall be a condition of such transaction that the successor shall assume the duties of the Company hereunder or (b) sale or liquidation of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets of the Company and such assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law. 10. REPRESENTATIONS. The Parties respectively represent and warrant that each is fully authorized and empowered to enter into this Agreement and that the performance of its or his, as the case may be, obligations under this Agreement will not violate any agreement between such Party and any other person, firm or organization. 11. ENTIRE AGREEMENT. Except to the extent otherwise provided herein, this Agreement contains the entire understanding and agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, whether written or oral, between the Parties concerning the subject matter hereof. 12. AMENDMENT OR WAIVER. No provision in this Agreement may be amended unless such amendment is agreed to in writing and signed by both the Employee and an authorized officer of the Company. No waiver by either Party of any breach by the other Party of any condition or provision contained in this Agreement to be performed by such other Party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. Any waiver must be in writing and signed by the Employee or an authorized officer of the Company. 13. SURVIVORSHIP. The respective rights and obligations of the Parties hereunder shall survive any termination of the Employee's employment with the Company to the extent necessary to the intended preservation of such rights and obligations as described in this Agreement. 14. BENEFICIARIES/REFERENCES. The Employee shall be entitled to select (and change, to the extent permitted under any applicable law) a beneficiary or beneficiaries to receive any compensation or benefit payable hereunder following the Employee's death by giving the Company written notice thereof. In the event of the Employee's death or of a judicial determination of his incompetence, reference in this Agreement to the Employee shall be deemed to refer to his beneficiary, and if the Employee shall not have designated a beneficiary, his spouse. 15. GOVERNING LAW. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York, without regard to principles or doctrines of conflicts of law. 16. NOTICES. Any notice given to either Party shall be in writing and shall be deemed to have been given when delivered either personally, by fax, by overnight delivery service (such as Federal Express) or sent by certified mail, postage prepaid, return receipt requested, duly addressed to the Party concerned at the address indicated below or to such changed address as such Party may subsequently give such notice of. If to the Company or the Board: Nu Horizons Electronics Corp. 70 Maxess Road Melville, New York 11747 Attention: Richard Schuster FAX: (631) 396-5060 If to the Employee: Paul Durando 31 Marlin Lane Port Washington, New York 11050 17. HEADINGS. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement. 18. COUNTERPARTS. This Agreement may be executed in two or more counterparts. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. NU HORIZONS ELECTRONICS CORP. By: /s/Arthur Nadata -------------------------------- /s/Paul Durando ----------------------------------- Paul Durando EX-10.2 3 freudenbergagt.txt EMPLOYMENT AGREEMENT AGREEMENT --------- THIS AGREEMENT is entered into the 25th day of May 2006 effective as of June 5, 2006 by and between Nu Horizons Electronics Corp.( the "Company") and Kurt Freudenberg ("Executive"). W I T N E S S E T H: WHEREAS, the Company has determined that it is in the best interests of the Company to employ the Executive, and the Executive desires to be employed by the Company; and WHEREAS, the Company desires to provide for the payment to Executive of certain amounts upon the occurrence of certain events during his employment. NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements herein contained, the Company and Executive hereby agree as follows: 1. Employment ---------- Executive agrees to be employed as Vice President effective June 5, 2006 and, effective July 15, 2006, as Chief Financial Officer and to devote his full time and attention to the business of the Company. Executive's duties shall be determined from time-to-time by both the Chief Executive Officer and President of the Company. Executive shall report on a day-to-day basis to both the Chief Executive Officer and President of the Company. The Executive shall also report to the Audit Committee of the Board of Directors of the Company. 2. Compensation ------------ The Company agrees that, during the time that Executive is employed by the Company, it shall pay Executive a gross salary of Two Hundred Fifty-Five Thousand Dollars ($250,000) per annum (as such amount may be adjusted by the Board of Directors of the Company from time to time during the Executive's employment, "Base Salary"). Such amount, net of all applicable tax deductions and withholdings required by law, shall be paid to Executive in accordance with the Company's normal payroll practices. -1- 3. Confidential Information and Non-Competition -------------------------------------------- (a) Executive acknowledges that as a result of his employment by the Company, Executive will obtain secret and confidential information as to the Company and its affiliated entities, that the Company and its affiliated entities will suffer substantial damage, which would be difficult to ascertain, if Executive shall enter into Competition (as defined below) with the Company or any of its affiliated entities and that because of the nature of the information that will be known to Executive it is necessary for the Company and its affiliated entities to be protected by the prohibition against Competition set forth herein, as well as the confidentiality restrictions set forth herein. Executive acknowledges that the provisions of this Agreement are reasonable and necessary for the protection of the business of the Company and its affiliated entities and that part of the compensation paid to Executive is in consideration for the agreements in this Section 3. (b) Competition shall mean: (i) participating, directly or indirectly, as an individual proprietor, partner, stockholder, officer, Executive, director, joint venturer, investor, lender, consultant or in any capacity whatsoever in the State of New York in a business in competition with the electronics components distribution business conducted by the Company or its affiliated entities during the period that Executive is employed by the Company (the "Employment Term"); provided, however, that such prohibited participation shall not include: (A) the mere ownership of not more than one percent (1%) of the total outstanding stock of a publicly held company; (B) the performance of services for any enterprise to the extent such services are not performed, directly or indirectly, for a business in the aforesaid Competition; or (C) any activity engaged in with the prior written approval of the Board of Directors of the Company. (ii) recruiting, soliciting or inducing any nonclerical employee or employee of the Company or its affiliated entities to terminate their employment with, or otherwise cease their relationship with, the Company or its affiliated entities or hiring or assisting another person or entity to hire any nonclerical employee of the Company or its affiliated entities. Notwithstanding the foregoing, if requested by an entity with which Executive is not affiliated, Executive may serve as a reference for any person who at the time of the request is not an employee of the Company or any of its affiliated entities. If any restriction set forth in above items (i) and/or (ii) is found by any court of competent jurisdiction, or an arbitrator, to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable. (c) During and after the Employment Term, Executive shall hold in a fiduciary capacity for the benefit of the Company and its affiliated entities all secret or confidential information, knowledge or data relating to the Company and its affiliated entities, and their -2- respective businesses, including any confidential information as to customers or vendors of the Company or its affiliated entities, (i) obtained by Executive during his employment by the Company or its affiliated entities; and (ii) not otherwise public knowledge or known within the Company's or its affiliated entities' industries. Executive shall not, without prior written consent of the Company, unless compelled pursuant to the order of a court or other governmental or legal body having jurisdiction over such matter, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it. In the event Executive is compelled by order of a court or other governmental or legal body to communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it, Executive shall promptly notify the Company of any such order and shall cooperate fully with the Company in protecting such information to the extent possible under applicable law. (d) Upon termination of Executive's employment with the Company, or at any other time as the Company may request, Executive will promptly deliver to the Company all documents which Executive may possess or have under his direction or control (whether prepared by the Company, an affiliated entity, Executive or a third party) relating to the Company or its affiliated entities or any of their respective businesses or properties. (e) During the Employment Term and for a period of one (1) year following termination thereof, Executive shall not enter into Competition with the Company or any of its affiliated entities. (f) In the event of a breach or potential breach of this Section 3, Executive acknowledges that the Company and its affiliated entities will be caused irreparable injury and that money damages may not be an adequate remedy and agree that the affiliated entities shall be entitled to injunctive relief (in addition to its other remedies at law) to have the provisions of this Section 3 enforced. 4. Change of Control ----------------- Upon any termination of Executive's employment within six months following a "Change of Control" (as defined below) of the Company, the Company shall pay Executive, within thirty (30) days of such event, a lump sum equal to the amount of his Base Salary in effect at the time of such event, plus a pro-rata portion of his annual bonus, based on the bonus paid to Executive for the immediately preceding fiscal year. As used herein "Change of Control" means (a) a change in control as such term is presently defined in Regulation 240.12b-2 under the Securities Exchange Act of 1934 ("Exchange Act"); or (b) if any "person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act) of the Company (other than any "person" who on the date of this Agreement is a director or officer of the Company), becomes the "beneficial owner" (as defined in Rule 13(d)-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty (20%) percent of the voting power of the Company's then outstanding securities, as the case may be, other than as a result of an acquisition of such securities from or by the Company; or (c) if during any period of two (2) consecutive years -3- during the term of Executive's employment, individuals who at the beginning of such period constitute the Board of Directors of either the Company cease for any reason to constitute at least a majority thereof. 5. Termination ----------- The parties agree that Executive's employment is "at-will" and can be terminated by either party at any time on two weeks' notice. Upon any such termination, Executive shall be entitled to receive any accrued but unpaid salary and benefits under Section 2 hereof through the time of such termination. Upon any such termination within six months following a Change in Control, Executive shall be entitled to the amounts set forth in Section 4 hereof. 6. Entire Agreement; Modification ------------------------------ This Agreement constitutes the full and complete understanding of the parties hereto and will supersede all prior agreements and understandings, oral or written, with respect to the subject matter hereof. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by either party, or anyone acting on behalf of either party, which are not embodied herein and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. This Agreement may not be modified or amended except by an instrument in writing signed by the party against whom or which enforcement may be sought. 7. Severability ------------ Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms of provisions of this Agreement in any other jurisdiction. 8. Waiver of Breach ---------------- The waiver by any party of a breach of any provisions of this Agreement, which waiver must be in writing to be effective, shall not operate as or be construed as a waiver of any subsequent breach. 9. Notices ------- All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, or one day after sending by express mail or other "overnight mail service," or three days after sending by certified or registered mail, postage prepaid, return receipt requested. Notice shall be sent as follows: if to Executive, to the address as listed in the Company's records; -4- and if to the Company, to the Company at its office as set forth at the head of this Agreement, to the attention of its Chief Executive Officer. Either party may change the notice address by notice given as aforesaid. 10. Assignability; Binding Effect ----------------------------- This Agreement shall be binding upon and inure to the benefit of Executive and Executive's legal representatives, heirs and distributees, and shall be binding upon and inure to the benefit of the Company, its successors and assigns. This Agreement may not be assigned by the Executive. This Agreement may not be assigned by the Company except in connection with a merger or a sale by the Company of all or substantially all of its assets and then only provided the assignee specifically assumes in writing all of the Company's obligations hereunder. 11. Governing Law ------------- (a) All issues pertaining to the validity, construction, execution and performance of this Agreement shall be construed and governed in accordance with the laws of the State of New York, without giving effect to the conflict or choice of law provisions thereof. (b) The Company and Executive each irrevocably consent that any legal action or proceeding against any of them under, arising out of or in any manner relating to, this Agreement or any other document delivered in connection herewith, may be brought in any court of the State of New York located within Nassau County or Suffolk County or in the United States District Court for the Eastern District of New York. The Company and Executive by the execution and delivery of this Agreement, expressly and irrevocably consent and submit to the personal jurisdiction of any of such courts in any such action or proceeding. The Company and Executive further irrevocably consent to the service of any complaint, summons, notice or other process relating to any such action or proceeding by delivery thereof to it by hand or by any other manner provided for in Section 9. The Company and Executive hereby expressly and irrevocably waive any claim or defense in any such action or proceeding based on any alleged lack of personal jurisdiction, improper venue or forum non convenient or any similar basis. Nothing in this Section shall affect or impair in any manner or to any extent the right of the Company to commence legal proceedings or otherwise proceed against the Executive in any jurisdiction or to serve process in any manner permitted by law. 12. Headings -------- The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. 13. Counterparts ------------ This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. -5- IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by an authorized officer and Executive has hereunto set his hand as of the date first set forth above. NU HORIZONS ELECTRONICS CORP. By: /s/Richard Schuster ------------------------------- Name: Richard Schuster Title: President /s/Kurt Freudenberg ---------------------------------- Kurt Freudenberg -6- -----END PRIVACY-ENHANCED MESSAGE-----