Exhibit 10.1
A GREEMENT , G ENERAL R ELEASE AND C ONFIDENTIALITY S TATEMENT
This A
GREEMENT
, G
ENERAL
R
ELEASE
AND
C
ONFIDENTIALITY
S
TATEMENT
(this
“Agreement”) is made and entered into as of the
11 th day of May, 2009, by and among
API Nanotronics Corp., a Delaware corporation and API E
LECTRONICS
, I
NC
., a Delaware
corporation (collectively, “API”), and T
HOMAS
W. M
ILLS
, S
R .
(“Employee”).
R ECITALS :
A. Employee’s employment with
API will end effective March 19, 2009 (the “Separation
Date”).
B. Employee first received a copy of
this Agreement on March 19, 2009 and received a copy of this
version of the Agreement on April 28, 2009.
C. API enters into this Agreement
based solely on Employee’s representation that this Agreement
will resolve any and all claims Employee has or could have against
API for any issue relating to his employment or the end of his
employment with API and all affiliates of API and that Employee has
waived any right to pursue any lawsuit against API with respect to
his employment, the separation of that employment, or any other
issue that arose prior to his execution of this
Agreement.
D. In an effort to end the
employment relationship on an amicable basis, and in consideration
of the mutual covenants, promises, and obligations contained in
this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is mutually acknowledged, the
Parties hereby agree as follows:
A GREEMENT :
1. Definition.
Throughout this Agreement, the term
“API” shall encompass the following:
(a) API, as well as any division
thereof, parent, subsidiary, affiliated entity, or related entity,
predecessors, successors and assigns of any of the foregoing;
and
(b) Any current or former officer,
director, trustee, agent, employee, shareholder, representative,
insurer, or employee benefit or welfare program or plan (including
administrators, trustees, fiduciaries, and insurers of such program
or plan) of an entity referenced in or encompassed by Subparagraph
1(a).
2. Resignations; Future
Employment. Employee
hereby resigns from his position as an officer of API, including
without limitation, as President and Chief Operating Officer for
API Nanotronics Corp., a member of API’s Board of Directors
and all other officer positions and directorships he held with API,
effective as of the Separation Date. All authority granted Employee
by API shall be revoked as of the Separation Date. At API’s
request, Employee shall execute any and all documents necessary to
confirm Employee’s resignation from API. Employee’s
employment with API shall end on the Separation Date. Employee
agrees that as a
condition of this Agreement, Employee will not
seek reemployment with API at any time and should Employee apply in
the future, his application for employment will not be considered
by API and will be null and void. Employee acknowledges that
promptly after the Separation Date API is required to issue a press
release announcing Employee’s resignation and promptly after
the Effective Date API is required to issued a press release with
respect to this Agreement. Employee also acknowledges that API
shall make such filings with the United States Securities and
Exchange Commission with respect to Employee’s resignation
and this Agreement as required by law and as it deems
appropriate.
3. Severance Payment and Other
Consideration. API, in
consideration for the promises contained herein, agrees as
follows:
(a) API will continue to pay
Employee’s weekly salary of two thousand four hundred three
and 85/100 ($2403.85) (less withholdings and deductions required by
law) for fifty-two (52) weekly pay periods (the
“Severance Period”), payable to Employee via direct
deposit on API’s regular paydays. Such payments shall begin
within 14 days after the Effective Date. The payments due to
Employee pursuant to this Section 3(a) cannot be offset by
amounts due from Employee to API pursuant to any cause of action or
claim, except as set forth in Section 9(d) and
10(h).
(b) API and Employee agree that no
amounts are due to Employee for accrued and unpaid vacation as of
the Separation Date.
(c) API will pay the monthly lease
payments of $652.00 due under Employee’s car lease with
Smithtown Motors Corp. for a period of twelve months from the
Separation Date.
(d) From the Separation Date until
the Effective Date, and during the Severance Period, API shall
continue Employee’s coverage under its medical and dental
plans (the “Medical Plans”) at the same benefit level
Employee received immediately prior to the Separation Date.
Notwithstanding the foregoing, in no event will API pay for or
continue Employee’s coverage under the Medical Plans during
the Severance Period if Employee becomes eligible for coverage
under another group health plan. After the Severance Period,
Employee will no longer be covered by API’s Medical Plans. At
that time, Employee will have any conversion rights available under
the Medical Plans and as otherwise provided by law, including the
Comprehensive Omnibus Budget Reconciliation Act
(“COBRA”). The period during which Employee will be
entitled to continuation coverage under COBRA shall begin on the
day after the Severance Period. If Employee elects to continue
coverage under the Medical Plans, Employee shall be responsible for
the payment of premiums, as permitted by law. Employee agrees to
immediately notify API in writing, if Employee becomes eligible for
such coverage under another group health plan. Such notice shall be
given to API Electronics Group Corp. c/o Filtran Ltd., 229
Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial
Officer.
(e) From the Separation Date until
the Effective Date, and during the Severance Period, API shall
continue Employee’s coverage under its Short Term
-2-
Disability, Long Term Disability,
Group Life Insurance and the Accidental Death and Dismemberment
Plans (“Insurance Plans”). After the Severance Period,
Employee will have any conversion rights available under the
Insurance Plans.
(f) Employee shall not participate
in the API Retirement Savings Plan after the Separation Date.
Employee will be entitled to benefits earned and vested (if any)
prior to the Separation Date pursuant to the applicable API
Retirement Savings Plan provisions.
(g) Employee will not be eligible
for a bonus for the Fiscal Year 2009 or anytime thereafter, or any
portion thereof.
The payments described in this
Section 3 reflect consideration provided to Employee over and
above anything of value to which Employee is already entitled. In
paying the amount specified in this Section 3, API makes no
representation as to the tax consequences or liability arising from
said payment. Moreover, the parties understand and agree that any
tax consequences and/or liability arising from the payment to
Employee shall be the sole responsibility of Employee. To this
extent, Employee acknowledges and agrees that he will pay any and
all federal, state and local income tax which may be determined to
be due in connection with the payments described in this
Section 3. Employee also agrees to indemnify API from all tax
and/or other liability (including, but not limited to, fines,
penalties, interest, and costs) arising from or relating to the
payment described in this Section 3 and/or imposed by the
Internal Revenue Service, the State of New York, or any other
taxing agency or tribunal as a result of API’s failure to
withhold taxes on the payments described in this Section 3 or
any portion thereof.
Employee acknowledges and agrees
that the consideration and sums included in this Section 3 are
the maximum sums ever to be due to Employee from API, and he hereby
relinquishes and waives any rights to other forms of payment or
benefits under any other agreement between Employee and API,
whether written, oral, express or implied.
(h) Employee shall be entitled to
keep desk, credenza and three matching chairs that formerly
belonged to the former owner of Solid State Power. Employee shall
arrange to pick-up said items, within seven (7) days of the
Effective Date (as defined below)
(i) API shall pay Employee $35,000
in full and complete satisfaction of all claims of Employee to
shares of common stock of API or any other securities of API. Such
amount shall be paid to employee by check and sent to Employee by
API on the day following the Effective Date.
4. General Release and Waiver
from Employee. In
consideration for the payments reflected in Section 3,
Employee (for himself, his agents, assigns, heirs, executors, and
administrators) hereby releases and discharges API from any claim,
demand, action, or cause of action, known or unknown, which arose
at any time from the beginning of time to the date Employee
executes this Agreement, and waives all claims relating to, arising
out of, or in any
-3-
way connected with his employment with or
termination of employment from API including, without limitation,
any claim, demand, action, cause of action, including money damages
and claims for attorneys’ fees, based on but not limited
to:
(a) The Age Discrimination in
Employment Act of 1967, as amended (“ADEA”), 29 U.S.C.
§ 621, et seq .;
(b) The Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101, et seq
.;
(c) The Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 701, et seq
.;
(d) The Family and Medical Leave Act
of 1993, 29 U.S.C. § 2601, et seq
.;
(e) The Civil Rights Act of 1866 and
1964, as amended, 42 U.S.C. § 1981;
(f) The Employee Retirement Security
Act of 1973, 29 U.S.C. § 1001, et seq
.;
(g) Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000(e), et
seq .;
(h) The Fair Credit Reporting Act,
15 U.S.C. § 1681, et seq .;
(i) The Fair Labor Standards Act, 29
U.S.C. § 201 et seq ;
(j) The New York Human Rights
Law;
(k) The New York Civil Rights
Law;
(l) The New York State Executive
Law;
(m) The New York City Administrative
Code;
(n) Any existing or potential
entitlement under any API program or plan, including wages or other
paid leave;
(o) Any existing or potential
agreement, contract, representation, policy, procedure, or
statement (whether any of the foregoing are express or implied,
oral or written);
(p) Claims arising under any other
federal, state or local fair employment practices law, disability
benefits law, and any other employee or labor relations statute,
executive order, law, ordinance, regulation or order and any duty
or other employment-related obligation, including any claims
arising from any other type of statute, executive order, law or
ordinance,
(q) Claims arising from contract or
public policy, as well as tort, tortious cause of conduct, breach
of contract, intentional infliction of emotional distress,
negligence, discrimination, harassment, and retaliation, together
with all claims for monetary and equitable relief, punitive and
compensatory relief and attorneys’ fees and costs;
and
-4-
(r) The New York Constitution and/or
the United States Constitution.
Employee understands and agrees that
he is releasing API from any and all claims by which he is giving
up the opportunity to recover any compensation, damages, or any
other form of relief in any proceeding brought by Employee or on
Employee’s behalf. Employee understands that this release
expressly includes all claims that could have been raised in a
federal, state, county or local court and that this release also
includes all claims for attorneys’ fees and any other remedy
that could have been sought in connection with any of the released
claims. Notwithstanding the foregoing, this Agreement is not
intended to operate as a waiver of any retirement or pension
benefits that are vested, the eligibility and entitlement to which
shall be governed by the terms of the applicable plan. Nor shall
this Agreement operate to waive or bar any claim or right which -
may not by operation of law or regulation be waived or
barred.
5. Release and Waiver from
API. In consideration for
the covenants and agreements of Employee set forth in this
Agreement, API on behalf of itself and its affiliates, successors
and assigns hereby releases and discharges Employee from any claim,
demand, action, or cause of action, known or unknown, which arose
at any time from the beginning of time to the date Employee
executes this Agreement, and waives all claims relating to, arising
out of, or in any way connected with Employee’s employment
with or termination of employment from API, except that this
release shall not include any claim, demand, action, or cause of
action, known or unknown, arising out of any violation or alleged
violation of law or any material violation or alleged material
violation of a company policy of API or any of its affiliates,
which arose at any time from the beginning of time to the date
Employee executes this Agreement.
6. Mutual Disclaimer.
Employee states under penalties of
perjury that - at the time he executes this Agreement - Employee is
not aware of any facts or incidents of wrongdoing, liability,
harassment, discrimination or retaliation by API from the beginning
of time up to the date Employee signs the Agreement. The
parties further understand that the offer of severance creates no
precedent for API in dealing with any future
separations.
7. No Other Claims
Pending. Employee
represents and warrants that, with the possible exception of a
claim for unemployment compensation, Employee has not filed or
otherwise initiated any complaint, cause of action or claim against
API based on events occurring prior to and including the date he
executes this Agreement. Employee further represents and warrants
that, as of the date he executes this Agreement, Employee is
unaware of any outstanding complaints, causes of action or claims
against API t
