Attached files
| file | filename |
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| 8-K - NU HORIZONS ELECTRONICS CORP | v183158_8k.htm |
| EX-3.1 - NU HORIZONS ELECTRONICS CORP | v183158_ex3-1.htm |
| EX-99.1 - NU HORIZONS ELECTRONICS CORP | v183158_ex99-1.htm |
| EX-10.3 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-3.htm |
| EX-10.2 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-2.htm |
| EX-10.1 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-1.htm |
| EX-10.7 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-7.htm |
| EX-10.6 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-6.htm |
| EX-10.5 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-5.htm |
THIRD
AMENDMENT TO EMPLOYMENT AGREEMENT
This
third amendment to employment agreement is made this 28th day of
April, 2010 effective as of the 3rd day of
May, 2010 (the “Effective Date”) by and between NU HORIZONS ELECTRONICS CORP., a
Delaware corporation (the “Company”) and ARTHUR NADATA, residing at
_______ (the “Employee”).
WITNESSETH
WHEREAS,
the Company and the Employee are parties to an Employment Agreement dated as of
September 13, 1996, as amended by the Amendment to Employment Agreement dated as
of March 28, 2005 and by the Second Amendment to Employment Agreement dated as
May 8, 2009 (collectively, the “Employment Agreement”); and
WHEREAS,
the Company and the Employee desire to further amend the Employment Agreement in
accordance with the terms hereof (“Third Amendment”).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto do hereby agree as
follows:
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1.
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The
Consulting Agreement attached as Exhibit A to the Second Amendment to the
Employment Agreement is hereby deleted in its entirety and the Consulting
Agreement attached as Exhibit A to this Third Amendment is substituted
therefore
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2.
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Except
as specifically amended by this Third Amendment, the Employment Agreement
shall remain in full force and effect in all respects as originally
executed and amended to date.
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3.
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This
Third Amendment may be executed in several counterparts, each of which
shall be deemed an original and all of which shall constitute one and the
same instrument. This Amendment shall be governed in all
respects, including validity, interpretation and effect, by the laws of
the State of New York, applicable to contracts made and to be performed
entirely in New York.
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IN
WITNESS WHEREOF, the parties have duly executed this Third Amendment as of the
first date written above.
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NU
HORIZONS ELECTRONICS CORP.
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By:
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/s/ Kurt Freudenberg
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Name:
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Kurt
Freudenberg
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Title:
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Executive
Vice President
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and
Chief Financial Officer
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/s/ Arthur Nadata
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Arthur
Nadata
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CONSULTING
AGREEMENT
This Agreement
(“Agreement”) is made this ____ day of _____, 20__ between Nu Horizons
Electronics Corp (the “Corporation”) and ________________, residing at [insert
address] (“Consultant”).
WHEREAS, the Corporation
desires to engage the services of Consultant as hereinafter provided;
and
WHEREAS, Consultant has agreed
to provide such services for the Corporation upon the terms and conditions
outlined herein;
NOW THEREFORE, in
consideration of the mutual promises herein contained, the parties agree as
follows;
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1.
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Consulting
Arrangement
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a.
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Commencing
___________ [date of termination of employment], Consultant shall be
retained by the Corporation, as a consultant, for the period commencing
[date of termination of employment] through [fifth anniversary of
termination of employment] (the “Consulting
Period”).
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b.
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In
consideration of such services, during the Consulting
Period:
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(1)
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Consultant
and his spouse shall be entitled to participate in all health and dental
insurance plans available to the Corporation’s senior executives and their
spouses, including any medical expense reimbursement plan, at the
Consultant’s sole cost (collectively, “Insurance
Plans”).
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(a)
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Consultant
shall be entitled to participate in the Insurance Plans subject to the
terms and conditions of the plan or program in question applicable to
executive employees generally, as such terms are amended
hereby. In the event that coverage under the Insurance Plans is
not available, Consultant and his spouse will be eligible to maintain
employee medical and dental benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”), provided that Consultant
timely elects COBRA coverage and his spouse timely elects an extension of
COBRA coverage at the time Consultant becomes eligible for Medicare
benefits.
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(b)
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The
Consultant and his spouse shall elect Medicare coverage at the time that
each is eligible to do so. In the event the Corporation no longer is
obligated to provide the Insurance Plans or COBRA coverage because of the
Medicare enrollment of Consultant or his spouse, as the case may be, the
Corporation shall reimburse Consultant or his spouse for the premiums
associated with the purchase of a Medicare supplemental insurance policy
(“Medigap”) for Consultant and/or his spouse, as applicable; provided that
the Corporation shall approve the selection of the Medigap insurer, which
consent shall not be unreasonably withheld. The Corporation shall
reimburse Consultant for such Medigap premiums in accordance with its
customary reimbursement procedures.
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(c)
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In
the event that Consultant predeceases his spouse, his spouse shall
continue to be entitled to participate in the Insurance Plans or receive
COBRA coverage until the earlier of the date on which the Consulting
Period ends or the date on which his spouse enrolls in
Medicare.
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(d)
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As
an accommodation to Consultant, the Corporation shall advance on behalf of
the Consultant, the cost of any insurance premiums for the Insurance Plans
(the “Insurance Premium Cost”), as and when such costs are required to be
paid.
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(e)
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Notwithstanding
the foregoing, the Insurance Plans may be modified or eliminated at the
Corporation’s sole discretion, at any time, without compensation or notice
to Consultant.
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(2)
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An
annual consulting fee in an amount equal to either (a) (i) the Employer’s
Share of the annual Insurance Premium Costs; plus (ii) an additional
amount equal to (x) the tax payable by Consultant in respect of the
Employer’s Share (as defined) of the Insurance Premium Costs, plus (y) an
additional amount equal to the tax payable on amounts payable pursuant to
the immediately preceding clause (a)(ii)(x) (in each case calculated at
the highest effective marginal combined federal, state and local income
tax rate prescribed in each taxing jurisdiction that Consultant is subject
to tax in such tax year) or (b) (i) the premiums paid by Consultant in
respect of COBRA coverage, plus (ii) an additional amount equal to the tax
payable by Consultant in respect of the amounts payable pursuant to the
immediately preceding clause (b)(i) (calculated at the highest effective
marginal combined federal, state and local income tax rate prescribed in
each taxing jurisdiction that Consultant is subject to tax in such tax
year), as applicable (the “Consulting Fees”). For the purposes hereof
“Employer’s Share” shall mean an amount equal to the percentage of the
Insurance Premium Costs payable by the Corporation in respect of executive
employees in accordance with the terms of the Insurance Plans as in effect
from time-to-time. Notwithstanding the foregoing, the aggregate
Consulting Fees paid hereunder shall not exceed 150% of the estimated
aggregate Insurance Premium Costs for the Consulting Period, as estimated
at the commencement of the Consulting
Period.
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(a)
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The
Consulting Fees shall be payable to the Consultant, in arrears, on or
before the March 15th
subsequent to the calendar year to which such Consulting Fees
relate.
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(b)
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The
Consultant hereby authorizes and directs the Corporation to reimburse the
Insurance Premium Costs previously paid by the Corporation from the
Consulting Fees otherwise payable to Consultant. To the extent
the Consulting Fees are insufficient to provide reimbursement for the
entire amounts advanced, the Corporation shall provide Consultant with an
invoice (provided at least fifteen days after the payment date of the
Consulting Fees) for any shortfall, which invoice shall be payable by
Consultant within thirty (30) days of
receipt.
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c.
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Consultant’s
consulting arrangement shall automatically terminate upon Consultant’s
death or “disability”. For purposes of this Agreement,
“disability” shall be defined as a physical or mental condition which
prevents Consultant from performing any consulting services, as determined
by the Corporation in its sole
discretion.
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d.
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During
the Consulting Period, Consultant shall consult with the Corporation and
its executive officers regarding its business and operations. Such
consulting services shall not require more than 75 days in any calendar
year nor more than two days in any week, it being understood and agreed
that during the Consulting Period Consultant shall have the right to
engage in full-time or part-time employment with other business
enterprises; provided that he does not engage in Competitive Activity.
Consultant also will cooperate with the Corporation in any pending or
future litigation or investigation or other dispute concerning third
parties in which Consultant, by virtue of his prior employment, has
relevant knowledge or information. Consultant's service as a
consultant shall only be required at such times and such places as shall
not result in unreasonable inconvenience to him or the Corporation,
recognizing his other business commitments that he may have to accord
priority over the performance of services for the Corporation. In order to
minimize interference with Consultant's other commitments, his consulting
services, to the extent practicable and not prejudicial to Corporation,
may be rendered by personal consultation at his residence or office
wherever maintained, or by correspondence through mail, telephone, fax or
other similar mode of communication at times, including weekends and
evenings, most convenient to him. For the purposes of this
Agreement, “Competitive Activity” shall mean (a) becoming an officer or
employee of, or rendering any services, including consulting services, to,
any competitor of the Corporation, (b) soliciting, raiding, enticing or
inducing any customer of the Corporation to cease purchasing goods or
services from the Corporation or to become a customer of any competitor of
the Corporation, and Consultant 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) soliciting, raiding, enticing or inducing any
employee of the Corporation to leave the employ of the Corporation, and
Consultant 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 subparagraph shall
be construed as preventing Consultant from investing his assets in such
form or manner as will not require him to become an officer or employee
of, or render any services (including consulting services) to, any
competitor of the Corporation.
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2.
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Payments Upon
Termination of Consulting
Arrangement
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Notwithstanding
the provisions of Section 1(b), should Consultant cease providing the consulting
services (other than for death or disability), Consultant and his spouse shall
have no further entitlement to payments, benefits or other remuneration
whatsoever.
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3.
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Acknowledgement
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Consultant
understands and agrees that ABSENT THIS AGREEMENT, he would not otherwise be
entitled to any payments and benefits as set forth herein and his right to
receive the payments and benefits set forth herein shall be a unsecured
contractual obligation of the Corporation and he shall have no greater rights
than any other employee, consultant or general unsecured creditor of the
Corporation.
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4.
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General Release of All
Claims
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In
exchange for the payments and benefits set forth herein, Consultant RELEASES the
Corporation, its affiliates, officers, directors, board members, employees or
agents from ANY AND ALL CLAIMS he may have, known or unknown, RELATED TO HIS
EMPLOYMENT WITH THE CORPORATION OR OTHERWISE, from the beginning of time through
the date that this Agreement becomes effective.
Consultant
understands and agrees that he is RELEASING the Corporation, its affiliates,
officers, directors, board members, employees and agents from any and all claims
for breach of contract, personal injury, wages, benefits, defamation, slander
and wrongful discharge, and any and all claims based on any oral or written
agreements or promises, including, but not limited to, claims arising under the
Family and Medical Leave Act, the Fair Labor Standards Act, the Worker
Adjustment Retraining and Notification Act, the Employee Retirement Income
Security Act of 1974, the New York State Labor Law and the New York
Whistleblower statute from the beginning of time through the date that this
Agreement becomes effective.
Consultant
understands and agrees that he is also RELEASING Corporation, its affiliates,
officers, directors, board members, employees or agents from any and all claims
for discrimination or harassment in employment on the basis of race, color,
creed, religion, age, national origin, alienage or citizenship, gender, sexual
orientation, disability, marital status, veteran’s status and any other
protected grounds, including, but not limited to, any and all rights and claims
he may have arising under Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Age Discrimination in Employment Act of
1967, the New York State Human Rights Law, and any other federal, state or local
laws or regulations, from the beginning of time through the date that this
Agreement becomes effective.
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5.
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Non-Disparagement
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Consultant
agrees that he shall not make or publish any statement (in verbal, written,
electronic or any other form), or instigate, assist or participate in the making
or publication of any statement (in verbal, written, electronic or any other
form), which would libel, slander or disparage (whether or not such
disparagement legally constitutes libel or slander) or expose to hatred or
contempt (i) Corporation; (ii) any of its services or operations; or (iii) any
of its past or present officers, directors, employees or
agents. Corporation, its present officers and directors shall not
libel, slander or disparage Consultant or expose him to hatred or
contempt
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6.
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Severability
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The
invalidity or unenforceability of any provision of this Agreement shall in no
event affect the validity or enforceability of any other provision.
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7.
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Applicable
Law
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Except to
the extent preempted by federal law, the provisions of this Agreement are to be
construed, administered and enforced in accordance with the laws of New York
without regard to principles of conflict of laws.
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8.
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Waiver
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The
failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver thereof or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.
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9.
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Captions and
Headings
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The
captions and headings are for convenience of reference only and shall not be
used to construe the terms or meaning of any provisions of this
Agreement.
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10.
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Amendments
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Any
modifications altering the terms and conditions of this Agreement must be in
writing and signed by all parties hereto.
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11.
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Assignment
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This
Agreement and any rights herein granted are personal to the parties hereto and
will not be assigned, sublicensed, encumbered, pledge or otherwise transferred
by either party without the prior written consent of the other party, and any
attempt at violative assignment, sublicense, encumbrance or any other transfer,
whether voluntary or by operation of law, will be void and of no force and
effect, except that this Agreement will be binding upon any successor or
assignee of Corporation.
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12.
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Counterparts
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This
Agreement may be executed in several counterparts, each of which shall be deemed
an original and all of which shall constitute one and the same
instrument.
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13.
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Effective
Date
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This
Agreement shall be effective when signed by the parties.
IN WITNESS WHEREOF, the
parties have executed this Agreement this ____ day of ______, 20__.
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Nu
Horizons Electronics Corp.
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By
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By
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