August 3, 2009 REVISED AGREEMENT
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Melville, NY 11747
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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August
3, 2009
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REVISED
AGREEMENT
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Hills, NY 11746
Dear
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This will
confirm our discussion about your separation from employment with Nu Horizons
Electronics Corp. (the "Company") on mutually agreeable terms as set forth
below. You and the Company agree that this Agreement represents the full and
complete agreement concerning your separation from employment with the
Company.
1. Last Day
of Work. Your last day of work was August 3,
2009. You will receive your regular salary and benefits through that
time. You must return any and all Company property including, but not
limited to, credit cards, computer files, documents, keys, etc.
As
of August 3, 2009, you also resigned as a director of the Company and any of its
affiliates, subsidiaries and divisions. You agree that you will not
keep copies of the Company’s property, its documents or any of its confidential
or proprietary information.
2. Severance. Providing
this Agreement becomes effective and you abide by its terms, you will receive
severance pay equal to $175,000, which shall be payable in a lump sum within 10
days following the execution of this Agreement.
3. Moving
Expenses. In addition, providing you sign this Agreement, the
Company shall pay you within 10 days following the execution of this Agreement
(i) a lump sum of $50,000 in respect of real estate commissions and legal
expenses to be incurred by you in connection with the sale of your Long Island
home, (ii) a lump sum in connection with your physical relocation to Canada in
an amount equal to the documented reasonable moving costs and expenses actually
incurred by you in connection with the physical move to the Long Island, New
York area in an amount not to exceed $50,000 and (iii) to the extent not
previously paid, an amount equal to the documented reasonable moving costs and
expenses previously incurred by you in connection with the physical move to the
Long Island, New York area in an amount not to exceed $50,000 and for legal
expenses associated with the physical move to the Long Island, New York area in
an amount not to exceed $5,000.
4. Withholding
on Payments. Taxes and other withholding amounts, as required
by law, will be deducted from all payments to you.
5. Acknowledgments. You
understand and agree that without this agreement, you would not otherwise be
entitled to the payments and benefits specified in this
Agreement. Further, by signing this Agreement, you agree that you are
not entitled to any other payments and/or benefits that are not specifically
listed in this Agreement.
6. General
Release of All Claims. In exchange for the payments and
benefits outlined above and the Company's promises set forth in this Agreement,
on behalf of yourself (and your heirs, successors and assigns), you hereby
release the Company, and any and all of its respective subsidiaries, affiliates,
divisions and each of its respective officers, directors, managers, owners,
attorneys, employees, agents, successors and assigns, as well as their
respective heirs, successors and assigns (hereinafter collectively "Releasees"),
from any and all legal, equitable or other claims, counterclaims, demands,
setoffs, defenses, contracts, accounts, suits, debts, agreements, actions,
causes of action, sums of money, reckonings, bonds, bills, specialties,
covenants, promises, variances, trespasses, damages, extents, executions,
judgments, findings, controversies and disputes, and any past, present or future
duties, responsibilities, or obligations, existing from the beginning of the
world through the date hereof, which are now known or unknown, including but not
limited to the following:
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a.
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any
and all such claims or counterclaims alleging or sounding in
discrimination, harassment, retaliation, failure to accommodate, breach of
contract, breach of any implied covenant of good faith, piercing the
corporate veil, whistleblowing, corporate fraud, accounting, tort,
defamation, libel, slander, injurious falsehood, public policy, assault,
battery, intentional or negligent infliction of emotional distress,
attorneys' fees, indemnification, and all claims for compensatory,
punitive, and liquidated damages;
and
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b.
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any
and all claims under any and all federal, state or local laws including,
but not limited to claims under the fair employment practice laws or other
employment related laws of the United States, New York and all
jurisdictions, states, municipalities and localities, including, but not
limited to Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§2000e et seq., the Civil Rights Act of 1991; the Age
Discrimination in Employment Act, 29 U.S.C. §§621-634; the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., the Family and
Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq., the Civil Rights Act
of 1866, 42 U.S.C. §§ 1981, the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. §§ 2101 et seq., the Sarbanes Oxley
Act of 2002, the National Labor Relations Act, 29 U.S.C. § 151,
et seq., the Fair Labor Standards Act, 29 U.S.C. §§201, et seq., the
Employee Retirement Income Security Act of 1974, 29 U.S.C. §§1001-1461,
New York Labor Law, the New York State Human Rights Law, the New York
Executive Law §290 et seq., and the New York Worker's Compensation Law;
and
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d.
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any
and all claims under all other employee relations, labor, corporate and
commercial statutes, executive orders, laws, rules and/or regulations;
and
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e.
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any
and all claims for wages, bonuses, commissions, vacation pay, employee
fringe benefits, reimbursement of expenses, monetary and/or equitable
relief, punitive and compensatory relief, and/or attorneys' fees and/or
costs.
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7. Company’s
Release
of Claims. Effective February 3, 2010, provided that the
Company does not discover any wrongdoing by you which results in a loss to the
Company, the Company shall release you from any and all legal, equitable or
other claims, counterclaims, demands, setoffs, defenses, contracts, accounts,
suits, debts, agreements, actions, causes of action, sums of money, reckonings,
bonds, bills, specialties, covenants, promises, variances, trespasses, damages,
extents, executions, judgments, findings, controversies and disputes, and any
past, present or future duties, responsibilities, or obligations, existing from
the beginning of the world through the date of this Agreement which are known or
unknown as of February 3, 2010; except that the Company does not release you
from any claims arising out of or related to claims asserted by third parties
against the Company related to your employment with the Company or your conduct
while acting on the Company’s behalf. Furthermore, the Company
expressly reserves the right to assert any applicable defenses, counterclaims or
cross claims against you in connection with such third party
litigation.
8. No
Negative Statements. Except as otherwise required by law or
regulation, you agree that you shall not make any statement, written or verbal,
in any form or media or take any action in disparagement of the Company and the
Releasees including, but not limited to, references to the Company’s products,
services, corporate policies, officers, directors, employees, attorneys and
agents or any other action which may disparage the Company to the general public
and the Company’s employees, customers, suppliers, and business and financial
relations. Except as otherwise required by law or regulation, the
Company, through its officers and directors, hereby agrees that it shall not
make any statement, written or verbal, in any form or media or take any action
inconsistent with the Press Release issued and Form 8K filed by the Company on
August 3, 2009.
9. Non-admission
of Wrongdoing. By entering into this Agreement, neither you
nor the Company, nor any of its respective subsidiaries, affiliates, divisions
or each of its respective officers, directors, managers, owners, attorneys,
employees, agents, successors and assigns, admit any wrongdoing or violation of
law.
10. Changes
to the Agreement. This Agreement may not be changed unless the changes
are in writing and signed by you and an authorized representative of the
Company.
11. Jurisdiction
and Applicable Law. This Agreement arises out of employment
within the State of New York and it shall in all respects be interpreted,
enforced and governed under the laws of the State of New York.
12. Entire
Agreement. This Agreement contains the entire agreement
between you and the Company relating to your employment and termination of your
employment and replaces any prior agreements or understandings between you and
the Company relating to your employment or separation except
that you shall continue to be bound by the Restrictive Covenants and
related provisions set forth in paragraph 10 of the Employment Agreement dated
May 8, 2009 between you and Nu Horizons Electronics Corp.
13. Waiver.
By signing this Agreement, you acknowledge that:
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a)
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You
have carefully read, and understand, this
Agreement;
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b)
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You
have been given sufficient time to consider your rights and obligations
under this Agreement and to consult with an
attorney;
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c)
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The
Company advised you to consult with an attorney and/or any other advisors
of your choice before signing this
Agreement;
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d)
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You
understand that this Agreement is LEGALLY BINDING and by signing it you
give up certain rights;
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e)
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You
have voluntarily chosen to enter into this Agreement and have not been
forced or pressured in any way to sign it;
and
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f)
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This
Agreement does not waive any rights or claims that may arise after this
Agreement is signed and becomes
effective.
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14. Effective
Date. You have seven (7) days from the date you sign this
Agreement to change your mind. If you change your mind, you must send
written notice of your decision to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇, P.C.,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, so that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
RECEIVES your revocation no later than the eighth (8th) day after you originally
signed the Agreement. You should understand that the Company will not
be required to provide the payments set forth above unless this Agreement
becomes effective.
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Very
truly yours,
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/s/
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Executive
Chairman
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of
the Board of Directors
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Agreed
and Accepted:
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/s/
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August
5, 2009
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Date
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STATE
OF NEW
YORK
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:
ss.:
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COUNTY
OF SUFFOLK
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On the
5 day
of August, 2009
before me personally came ▇▇▇▇▇ ▇▇▇▇▇▇, to me known and known to me to be the
individual described in, and who executed, the above Agreement, and duly
acknowledged to me that he executed the same.
/s/ ▇▇▇▇▇ ▇.
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Notary
Public