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Exhibit
10.2
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (“Agreement”) is made by and between
John D. Heaton (“Employee”) and Nanometrics
Incorporated (“Company”) (collectively referred to as
the “Parties” or individually referred to as a
“Party”).
RECITALS
WHEREAS, Employee was
formerly employed by the Company;
WHEREAS, Employee signed the
Company’s Employee Patent and Confidential Information
Agreement (the “Confidentiality Agreement”) on
September 17, 1990;
WHEREAS, the Company and
Employee entered into an Employment Agreement effective as of
October 4, 2006 (the “Employment
Agreement”);
WHEREAS, the Company
terminated Employee’s employment with the Company on
March 26, 2007 (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 Releasees 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 . The Employee will be entitled to the
consideration indicated in the Employment Agreement, as
follows:
a.
Cash . The Company agrees to pay Employee the gross sum of
$404,250.00 over twelve (12) months commencing on the first
Company payroll date that occurs after the Effective Date of this
Agreement. Such payments will be made in equal installments, less
applicable withholding, in accordance with the Company’s
normal payroll practices. Any and all payments of already made by
the Company to Employee since the Termination Date, with the
exception of repayment of expenses, shall be deducted from this
amount.
b.
Equity . Effective as of the Termination Date, the vesting
of each outstanding equity award relating to shares of the
Company’s common stock shall accelerate and become
immediately exercisable as to that number of shares that would have
vested had Employee remained an employee of the Company through the
twelve-month anniversary of the Termination Date. Employee’s
deadline to exercise is extended to the date before the
Company’s first public disclosure of earnings after the
Effective Date of this Agreement. Except as provided herein, each
of
Employee’s equity awards shall
continue to be governed by the terms and conditions of the equity
plan under which it was granted and the equity award agreement
between Employee and the Company (such plan(s) and agreement(s) the
“Stock Agreements”).
c.
COBRA . Provided that Employee timely and validly elects to
continue medical care coverage for Executive (and any eligible
dependents) under the Company’s benefit plans pursuant to
COBRA, the Company shall reimburse Employee for the payments
Employee makes for COBRA coverage for continued medical benefits
until the earlier of (i) twelve (12) months from the
Termination Date, or (ii) the date upon which Employee and
Employee’s eligible dependents obtain coverage through some
alternative source, whichever occurs first. COBRA reimbursements
shall be made by the Company to Employee consistent with the
Company’s normal expense reimbursement policy, provided that
Employee submits documentation to the Company substantiating his
payments for COBRA coverage. For purposes of this Agreement,
“COBRA” shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended and as codified in
Section 4980B of the Code and Section 601 et. seq. of
ERISA or any similar applicable state law.
2.
Benefits . Employee’s health insurance benefits shall
cease on the last day of March 2007 (or, if provided by the
Company’s benefits plans, on the Termination Date), subject
to Employee’s right to continue his health insurance under
COBRA. Employee’s participation in all benefits and incidents
of employment, including, but not limited to, vesting in stock
options (subject to paragraph 1.b above), and the accrual of
bonuses, vacation, and paid time off, shall cease as of the
Termination Date.
3.
Payment of Salary . 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, 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.
4.
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, administrators, affiliates, 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, or arising from, Employee’s right
to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for
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fraud, misrepresentation, breach of
fiduciary duty, breach of duty under applicable state corporate
law, and securities fraud under any state or federal
law;
c. 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;
d. 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; the California Family Rights Act; the
California Labor Code, except as prohibited by law; the California
Workers’ Compensation Act, except as prohibited by law; and
the California Fair Employment and Housing Act;
e. any
and all claims for violation of the federal or any state
constitution;
f. any
and all claims arising out of any other laws and regulations
relating to employment or employment discrimination;
g. 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
h. 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: (1) your right to file a charge with or participate in a
charge by the Equal Employment Opportunity Commission or comparable
state agency against the Company (with the understanding that any
such filing or participation does not give you the right to recover
any monetary damages against the Company; your release of claims
herein bars you from recovering such monetary relief from the
Company); (2) claims under Division 3, Article 2 of
the California Labor Code (which includes California Labor Code
section 2802 regarding indemnity for necessary expenditures or
losses by employee); (3) claims prohibited from release as set
forth in California Labor Code section 206.5 (specifically
“any claim or right on account of wages due, or to become
due, or made as an advance on wages to be earned,
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unless payment of such wages has been
made”); (4) and any claims for indemnity or the advance
of defense costs, whether such claims arise under Company
instruments (including, but limited to, the Company’s
Articles, By-laws, resolutions, policies, and practices), policies
of insurance, or the Delaware General Corporation Law.
5.
Acknowledgement 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) h
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