Paul Thomas Goldman III 18301 Angel Valley Drive Leander, TX 78641 Dear Tom:
EXHIBIT
10.1
March
23,
2006
Xxxx
Xxxxxx Xxxxxxx III
00000
Xxxxx Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
Dear
Xxx:
This
will
confirm that your employment with American Power Conversion Corporation and
its
subsidiaries (collectively “APC” or the “Company”) has been terminated,
effective as of March 24, 2006
(the
“Termination Date”). As of the Termination Date, your salary has ceased, and any
entitlement you had or might have had under an APC-provided benefit plan,
program or practice terminates, except as otherwise required by federal or
state
law. This letter agreement (“Agreement”) spells out the terms of your separation
from employment with APC.
1. In
consideration for your execution of this Agreement, including specifically
the
release provisions in Section 3, APC agrees to the following:
(a) You
will
be paid an aggregate of $137,500 in severance pay, minus any applicable federal,
state and/or local taxes, deductions and withholdings, and any other agreed-upon
deductions, in accordance with APC’s normal payroll practices, in ten (10) equal
bi-weekly installments commencing in the pay period following APC’s receipt of
this Agreement signed by you.
(b) You
have
the right under federal legislation, commonly referred to as “COBRA”, to
continue participation in APC’s group health insurance plans (medical, dental)
at your expense for a period of up to 18 months after termination of employment
with APC, subject to limitations on that right imposed by COBRA. Although not
obligated to do so, APC will pay your health insurance premiums for the five
(5)
months that follow the month in which the Termination Date falls or until you
are eligible for other health insurance coverage by virtue of becoming employed
by another employer, whichever comes first, provided that you agree to notify
the Vice President-Human Resources of APC in writing within two (2) business
days following your acceptance of any such employment. At the conclusion of
the
5-month period, you will be permitted to continue participation in the group
health insurance plans by payment of the entire appropriate monthly premium
for
the remainder of the 18-month COBRA period (subject to the limitations on that
right imposed by COBRA). You understand that, in accordance with COBRA, APC’s
obligations under this paragraph may terminate in any event if you are not
eligible or become covered by another health insurance plan prior to the end
of
the 18-month period following your termination of employment. Documents relating
to your COBRA rights will be provided separately.
2.
You
understand and agree that the payments and benefits offered to you in Section
1
of this Agreement are in addition to any payments or benefits to which you
are
otherwise entitled because of your employment with the Company.
3.
(a) In exchange for the amounts described in Section 1 of this Agreement, and
other good and valuable consideration, you knowingly and voluntarily agree
that
you, your representatives, agents, estate, heirs, successors and assigns
absolutely and unconditionally release, indemnify, hold harmless and forever
discharge the Company and its parent, subsidiaries, divisions, affiliates,
successors and/or assigns and their respective current and/or former officers,
directors, shareholders, agents, and employees, both individually and in their
official capacities (collectively referred to throughout this Agreement as
the
“Releasees”), of and from any and all actions, causes of action, suits, claims,
complaints, liabilities, agreements, promises, contracts, torts, damages,
controversies, judgments, rights and demands, whether existing or contingent,
known or unknown, which you have or may have against the Releasees, including,
but not limited to: (i) any and all claims arising out of or in connection
with
your employment, change in employment, resignation or termination; (ii) any
and
all claims based on any federal, state or local law, constitution or regulation
dealing with employment, employment discrimination, retaliation and/or
employment benefits such as those laws or regulations concerning discrimination
on the basis of race, color, creed, religion, age, sex, sex harassment, sexual
orientation, marital status, national origin, ancestry, handicap or disability,
family or medical leave, veteran status or any military service or application
for military service; (iii) any and all claims based on any alleged public
policy, contract (whether oral or written, express or implied), tort, or any
other statutory or common law claim of any nature whatsoever; and/or (iv) any
allegation for costs, fees, or other expenses including attorneys’ fees incurred
in these matters. This provision is intended by you to be all-encompassing
and
to act as a full and total release of any and all claims, whether specifically
enumerated herein or not, that you and your representatives, agents, estate,
heirs, successors and assigns have, may have or have had against the Releasees
from the beginning of the world to the date of your execution of this Agreement.
(b) You
not only release and discharge the Releasees from any and all claims as stated
above that you could make on your own behalf or on behalf of others, but you
also specifically waive any right to recover any award(s) as a member of any
class in a case in which any claim(s) against the Releasees are made, including,
without limitation, claims involving any matters arising out of your employment
with, change in employment status with, or resignation/termination from
employment with APC.
(c)
The amounts set forth above in Section 1 shall be complete and unconditional
payment, settlement, accord and/or satisfaction with respect to all obligations
and liabilities of Releasees to you, including, without limitation, all claims
for wages, salary, draws, incentive pay, bonuses, stock and stock options,
restricted
stock or restricted stock units, commissions, severance pay, any and all other
forms of compensation or benefits, attorney’s fees, or other costs or sums,
provided that you are not releasing any rights you may have, under the terms
of
the Agreement
and Plan of Merger (the “Merger Agreement”) dated October 3, 2005, by and among
American Power Conversion Corporation, NB Acquisition Corporation and NetBotz,
Inc., to the Escrow Amount (as that term is defined in the Merger
Agreement).
(d) Waiver
of Rights and Claims Under the Age Discrimination and Employment Act of
1967.
Since you are 40 years of age or older, you have been informed that you have
or
might have specific rights and/or claims under the Age Discrimination in
Employment Act of 1967 (ADEA) and you agree that:
(i) In
consideration for the amounts described in Section 1 hereof, which you are
not
otherwise entitled to receive, you specifically waive such rights and/or claims
under ADEA that you might have against the Releasees to the extent that such
rights and/or claims arose prior to or on the date this Agreement was
executed;
(ii) You
understand that rights or claims under the ADEA which may arise after the date
this Agreement is executed are not waived by you;
(iii) You
are advised to consider the terms of this Agreement carefully and to consult
with your counsel or any other person of your choosing prior to executing this
Agreement and you have not been subject to any undue or improper influence
interfering with the exercise of your free will in deciding whether to execute
this Agreement;
(iv) You
have been informed that you have up to 21 days within which to consider the
terms of this Agreement;
(v) You
have carefully read and fully understand all of the provisions of this
Agreement, and you knowingly and voluntarily agree to all of the terms set
forth
in this Agreement;
(vi) In
entering into this Agreement you are not relying on any representation, promise
or inducement made by the Releasees or their attorneys with the exception of
those promises described in this document;
and
(vii) The
21-day review period will not be affected or extended by any revisions which
might be made to this Agreement.
4.
By
signing this Agreement, you understand and agree: (a) that this Agreement sets
forth the entire agreement between you and APC and supersedes all other
agreements, representations, and or understandings, whether oral or written,
with respect to the subject matter herein; (b) that nothing in this Agreement
is
intended to mean that APC has engaged in any wrongdoing or unlawful conduct;
(c)
that you will not disclose the existence or the contents of this Agreement
to
anyone but your attorney, advisor, spouse, or significant other, provided that
nothing in this Agreement shall bar you from
providing
truthful testimony in any legal proceeding or cooperating with any governmental
agency, however, you understand and agree that APC may publicly disclose your
resignation and the existence of this Agreement and/or its contents; (d) that
you will continue to be bound by your obligations under the Non-Disclosure,
Non-Competition, Non-Solicitation and Developments Agreement between you and
APC
dated as of September 30, 2005, which shall remain in full force and effect
in
accordance with its terms; (e) that this Agreement can be modified only in
a
written agreement signed by you and APC; and (f) that this Agreement shall
be
interpreted pursuant to its fair meaning and shall not be strictly construed
for
or against either party.
5.
In
addition to the above, and in consideration of the amounts described in Section
1 of this Agreement, by signing this Agreement you agree not to make
disparaging, critical or otherwise detrimental comments, in any form, forum
or
media, to any person or entity concerning APC and its officers, directors,
shareholders, trustees, or employees, concerning the services or programs
provided or to be provided by APC, concerning the business affairs or the
financial condition of APC, or concerning the circumstances surrounding your
employment with and/or separation from APC.
6. You
understand that, whether or not you sign this Agreement, you must immediately
return to APC all property of APC in your possession or control, including,
but
not limited to, company records, files, laptop computers, cellular telephones,
credit cards, keys and security badges.
7. You
confirm that no charge, complaint or action filed by you or on your behalf
against the Releasees exists in any forum or form.
8. In
connection with the termination of your employment with APC, you confirm that
such termination includes your termination as Vice President, World Wide Sales,
of APC, as well as termination as an officer and/or director of any subsidiary
or affiliate of APC.
9.
In
addition to the above, and in consideration of the amounts described in Section
1 of this Agreement, by signing this Agreement you agree, for a period of one
(1) year from the date of this agreement, to cooperate with the Company and
provide reasonable assistance with respect to the defense of any actions, causes
of action, suits, claims, charges and complaints made against the Company prior
to or following the Termination Date in which you are involved, have knowledge,
or may be deposed or called to serve as a witness. The Company agrees to
reimburse you for any reasonable expenses incurred by you in complying with
this
Section 9. You understand and agree that in the event you fail to comply with
this Section 9 you will not be entitled to receive any further payments under
Section 1 of this Agreement.
10. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Rhode Island, without regard to its conflict of laws provision. Should
any provision of the Agreement be declared unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, excluding
the
general release language contained in Section 3, such provision shall
immediately become null and void,
leaving
the remainder of this Agreement in full force and effect. This Agreement cannot
be assigned by you and shall inure to the benefit of APC’s successors and
assigns.
11.
If this Agreement correctly states the understanding we have reached, please
indicate your acceptance by countersigning the enclosed copy and returning
it to
the Human Resources Department within
twenty-one (21) days.
If
you do sign this Agreement, it will not take effect with respect to any claim
under ADEA until seven (7) days have passed after you sign it. We will not
be
able to provide you with the severance pay or benefits that we have offered
you
until the seven-day revocation period has expired. During those seven (7) days
you will have the right to revoke this Agreement with respect to any claim
under
ADEA. If you decide to so revoke this Agreement, please inform me by letter
during the seven-day period that you desire to revoke your execution of this
Agreement, in which case you will not receive the severance pay or benefits
offered in this Agreement.
| Very truly yours, | ||
| |
|
|
| /s/ Xxxxxx Xxxx | ||
|
|
||
| Xxxxxx Xxxx | ||
|
Vice
President - Human Resources &
Organizational
Development
|
||
I
acknowledge that I have read the foregoing Agreement, and that I carefully
considered and fully understand the terms and conditions of such Agreement.
I
acknowledge that I am signing this Agreement knowingly and voluntarily. In
entering into this Agreement, I do not rely on any representation, promise
or
inducement made by APC, the Releasees or their attorneys, with the exception
of
the consideration described in this document.
ACCEPTED:
| /s/ Xxxx Xxxxxx Xxxxxxx III
Signature |
May 16, 2006
Date |
