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Exhibit 10.1
M-WAVE, INC.
SEPARATION AGREEMENT
AND RELEASE
This
Separation Agreement and Release (“Agreement”) is
made by and between Jeff Figlewicz (“Employee”)
and M-Wave, Inc. (the “Company”) (collectively
referred to as the “Parties” or individually
referred to as a “Party”).
RECITALS
WHEREAS,
Employee is currently employed as the Chief Financial Officer
and Corporate Secretary of the Company;
WHEREAS,
Employee and the Company are party to a letter agreement dated
July 12, 2006, regarding Employee’s severance (the
“2006 Severance Agreement”); and
WHEREAS,
the specific reverse merger activities that prompted the 2006
Severance Agreement between the Employee and the Company have
been terminated;
WHEREAS,
Employee signed an “Employee Confidentiality And
Property Agreement”
with the Company (the “Confidentiality
Agreement”);
WHEREAS,
the Company and Employee have entered into Nonqualified Stock
Option Agreements, dated July 23, 2004 and February 3, 2006,
granting Employee the option to purchase shares of the
Company’s common stock subject to the terms and
conditions of the Company’s 2003 Stock Option Plan and
the Stock Option Agreement (collectively the “Stock
Agreements”);
WHEREAS,
the Company terminated Employee’s employment with the
Company effective the signing date of this agreement by both
Parties (the “Termination Date”); and
WHEREAS,
the Parties wish to resolve any and all disputes, claims,
complaints, grievances, charges, actions, petitions, and
demands that the Employee may have against the Company and any
of the Releases as defined below, including, but not limited
to, any and all claims arising out of or in any way related to
Employee’s employment with or separation from the
Company;
NOW,
THEREFORE, in consideration of the mutual promises made
herein, the Company and Employee hereby agree as
follows:
COVENANTS
1.
Consideration
. In consideration of Employee’s execution of
this Agreement and Employee’s fulfillment of all of its
terms and conditions, and provided that Employee does not
revoke the Agreement under paragraph 6 below, the Company
agrees as follows:
a.
Consulting
Agreement . The Company agrees to enter into
the Consulting Agreement with Employee as set forth under and
subject to the terms of paragraph 16 below.
b.
Separation
Payment . The Company further agrees to pay
Employee a total lump sum of Twenty Thousand Dollars and
No/Cents ($20,000.00), less applicable
withholding. This payment will be made to Employee
within ten (10) business days after the Effective Date of this
Agreement.
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c.
General
. Employee acknowledges that without this
Agreement, he is otherwise not entitled to the consideration
listed in this paragraph 1.
2.
Stock
. The Parties agree that for purposes of
determining the number of shares of the Company’s common
stock that Employee is entitled to purchase from the Company,
pursuant to the exercise of outstanding options, Employee will
be considered to have vested only up to the Termination
Date. Employee acknowledges that as of the
Termination Date, Employee will have vested in 25,000 options
and no more. The exercise of Employee’s
vested options and shares shall continue to be governed by the
terms and conditions of the Company’s Stock
Agreements.
3.
Benefits
. Employee’s health insurance benefits shall
cease on the Termination Date, subject to Employee’s
right to continue his health insurance under COBRA
determined. Employee’s participation in all
benefits and incidents of employment, including, but not
limited to, vesting in stock options, and the accrual of
bonuses, vacation, and paid time off, ceased as of the
Termination Date.
4.
Payment of
Salary and Receipt of All Benefits
. Employee acknowledges and represents that, other
than the consideration set forth in this Agreement, the
Company has paid or provided all salary, wages, bonuses,
accrued vacation/paid time off, leave, housing allowances,
relocation costs, interest, severance, outplacement costs,
fees, reimbursable expenses, commissions, stock, stock
options, vesting, and any and all other benefits and
compensation due to Employee.
5.
Release of
Claims . Employee agrees that the foregoing
consideration represents settlement in full of all outstanding
obligations owed to Employee by the Company and its current
and former officers, directors, employees, agents, investors,
attorneys, shareholders, founders, administrators, affiliates,
benefit plans, plan administrators, parents, divisions, and
subsidiaries, and predecessor and successor corporations and
assigns (collectively, the
“Releasees”). Employee, on his own
behalf and on behalf of his respective heirs, family members,
executors, agents, and assigns, hereby and forever releases
the Releasees from, and agrees not to sue concerning, or in
any manner to institute, prosecute, or pursue, any claim,
complaint, charge, duty, obligation, or cause of action
relating to any matters of any kind, whether presently known
or unknown, suspected or unsuspected, that Employee may
possess against any of the Releasees arising from any
omissions, acts, facts, or damages that have occurred up until
and including the Effective Date of this Agreement, including,
without limitation:
a. any
and all claims relating to or arising from Employee’s
employment relationship with the Company and the termination
of that relationship;
b. any
and all claims relating to all prior or contemporaneous
agreements whether written or oral, including the 2006
Severance Agreement;
c. any
and all claims relating to, or arising from, Employee’s
right to purchase, or actual purchase of shares of stock of
the Company, including, without limitation, any claims for
fraud, misrepresentation, breach of fiduciary duty, breach of
duty under applicable state corporate law, and securities
fraud under any state or federal law;
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d. any
and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination;
harassment; retaliation; breach of contract, both express and
implied; breach of covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or
intentional infliction of emotional distress; fraud; negligent
or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage;
unfair business practices; defamation; libel; slander;
negligence; personal injury; assault; battery; invasion of
privacy; false imprisonment; conversion; and disability
benefits;
e. any
and all claims for violation of any federal, state, or
municipal statute, including, but not limited to,
Title VII of the Civil Rights Act of 1964; the Civil
Rights Act of 1991; the Rehabilitation Act of 1973; the
Americans with Disabilities Act of 1990; the Equal Pay Act;
the Fair Labor Standards Act, except as prohibited by law; the
Fair Credit Reporting Act; the Age Discrimination in
Employment Act of 1967; the Older Workers Benefit Protection
Act; the
Employee Retirement Income Security Act of 1974; the Worker
Adjustment and Retraining Notification Act; the Family and
Medical Leave Act, except as prohibited by law; the
Sarbanes-Oxley Act of 2002; the Uniformed Services Employment
and Reemployment Rights Act; Texas Workers’ Compensation
Act; Chapter 21 of the Texas Labor Code (also known as the
Texas Commission on Human Rights Act); the Illinois
Workers’ Compensation Act; and the Illinois Human Rights
Act;
f.
any and all claims for violation of
the federal or any state constitution;
g. any
and all claims arising out of any other laws and regulations
relating to employment or employment
discrimination;
h. any
claim for any loss, cost, damage, or expense arising out of
any dispute over the non-withholding or other tax treatment of
any of the proceeds received by Employee as a result of this
Agreement; and
i.
any and all claims for attorneys’ fees and
costs.
Employee
agrees that the release set forth in this section shall be and
remain in effect in all respects as a complete general release
as to the matters released. This release does not
extend to any obligations incurred under this
Agreement. This release does not release claims
that cannot be released as a matter of law, including, but not
limited to Employee’s right to file a charge with or
participate in a charge by the Equal Employment Opportunity
Commission, or any other local, state, or federal
administrative body or government agency that is authorized to
enforce or administer laws related to employment, against the
Company (with the understanding that any such filing or
participation does not give Employee the right to recover any
monetary damages against the Company; Employee’s release
of claims herein bars Employee from recovering such monetary
relief from the Company).
6.
Acknowledgment
of Waiver of Claims under ADEA . Employee acknowledges
that he is waiving and releasing any rights he may have under
the Age Discrimination in Employment Act of 1967
(“ADEA”), and that this waiver and release is
knowing and voluntary. Employee agrees that this
waiver and release does not apply to any rights or claims that
may arise under the ADEA after the Effective Date of this
Agreement. Employee acknowledges that the
consideration given for this waiver and release is in addition
to anything of value to which Employee was already
entitled. Employee further acknowledges that he has
been advised by this writing that: (a) he should consult with
an attorney prior to
executing this Agreement; (b) he has twenty-one (21) days
within which to consider this Agreement; (c) he has seven (7)
days following his execution of this Agreement to revoke this
Agreement; (d) this Agreement shall not be effective until
after the revocation period has expired; and (e) nothing in
this Agreement prevents or precludes Employee from challenging
or seeking a determination in good faith of the validity of
this waiver under the ADEA, nor does it impose any condition
precedent, penalties, or costs for doing so, unless
specifically authorized by federal law. In the
event Employee signs this Agreement and returns it to the
Company in less than the 21-day period identified above,
Employee hereby acknowledges that he has freely and
voluntarily chosen to waive the time period allotted for
considering this Agreement. Employee acknowledges
and understands that revocation must be accomplished by a
written notification to Joe Turek, Chairman, M-Wave, Inc.,
1300 Norwood Avenue Itasca, Illinois 60143, that is received
prior to the Effective Date.
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7.
Unknown
Claims . Employee acknowledges that he has
been advised to consult with legal counsel and that he is
familiar with the principle that a general release does not
extend to claims that the releaser does not know or suspect to
exist in his favor at the time of executing the release,
which, if known by him, must have materially affected his
settlement with the releasee. Employee, being aware
of said principle, agrees to expressly waive any rights he may
have to that effect, as well as under any other statute or
common law principles of similar effect.
8.
No Pending or
Future Lawsuits . Employee represents that
he has no lawsuits, claims, or actions pending in his name, or
on behalf of any other person or entity, against the Company
or any of the other Releasees. Employee also
represents that he does not intend to bring any claims on his
own b
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