EXHIBIT
10.2
AGREEMENT AND
RELEASE
Agreement and Release (“Agreement”)
executed this 19 th day of December, 2006, by and
between Scott Massie (“Employee”) who
resides at 9105 Avenida DeLa Luna, Albuquerque, New Mexico and
Emcore Corporation (“Emcore”).
1. Employee’s employment is terminated
effective December 29, 2006.
2.
(a) As soon as administratively practicable
following June 29, 2006, Emcore shall pay to Employee 62 weeks of
his or her salary in a lump-sum payment (“Severance”).
The total Severance, which will be paid to Employee, is equal to
$310,000, less applicable withholdings and deductions.
(b) In accordance with the Company’s health
plans, Employee will be eligible to exercise his or her rights to
COBRA health insurance coverage for Employee, and, where
applicable, Employee’s spouse and eligible dependents, at
Employee’s expense (subject to the foregoing), upon
termination of the Employee’s employment. To the extent
Employee elects COBRA continuation coverage, the Company shall
continue to pay the portion of the COBRA premiums up to a maximum
of 62 weeks that the Company would have otherwise paid assuming
Employee was an active employee during such time. Up until the
Severance payment is made, the Company will pay Employee’s
portion of the COBRA premiums, which total amount of premiums shall
then be deducted from the Severance payment. After the Severance
payment is made, Employee shall be responsible for directly paying
Employee’s portion of COBRA premiums. Nothing herein shall be
construed as extending or delaying the start date of the COBRA
coverage period for Employee.
All voluntary payroll deductions, including but
not limited to 401(k), ESPP and term life, will cease effective the
date of termination.
(c) If Employee is rehired by Emcore during the
Severance period, Emcore shall no longer be obligated to make any
severance payment under paragraph 2(a) above that would otherwise
be due and owing after the effective date of employee's rehiring.
Employee acknowledges and agrees that the cessation of severance
payments under this provision shall not affect the validity or
enforceability of paragraph 5 of this agreement."
3. Employee agrees and acknowledges that the
payments and benefits provided for in paragraph “2”
exceed any benefits to which he or she would otherwise be entitled
under any policy, plan, and/or procedure of Emcore or any agreement
with Emcore. Employee agrees and acknowledges that the payment of
Severance (or any other payments hereunder) shall not be construed
as a guarantee of any particular tax treatment for such
payment.
4.
Employee shall have twenty-one (21)
days from the date of his or her receipt of this Agreement to
consider the terms and conditions of the Agreement. Employee may
accept this Agreement by signing and returning it to Ms. Monica Van
Berkel, Vice President, Human Resources, Emcore Corporation, or her
successor to 2015 W. Chestnut Street, Alhambra, CA 91803, no later
than 5:00 p.m. on the twenty-first (21st) day after
Employee’s receipt of this Agreement (“Agreement and
Release Return Date”). Thereafter, Employee will have seven
(7) days to revoke this Agreement by stating his or her desire to
do so in writing to Ms. Van Berkel or her successor at the address
listed above, and delivering it to Ms. Van Berkel or successor no
later than 5:00 p.m. on the seventh (7th) day following the date
Employee signs this Agreement. The effective date of this Agreement
shall be the (8th) day following Employee’s signing of this
Agreement (the “Release Effective Date”), provided the
Employee does not revoke the Agreement during the revocation
period. In the event Employee does not accept this Agreement as set
forth above, or in the event Employee revokes this Agreement during
the revocation period, this Agreement, including but not limited to
the obligation of Emcore and its subsidiaries and affiliates to
provide the payments and benefits referred to in paragraph
“2” above, shall automatically be deemed null and
void.
5.
(a) In consideration of the payments and benefits
referred to in paragraph “2,” Employee for himself or
herself and for his or her heirs, executors, and assigns
(hereinafter collectively referred to as the
“Releasors”), forever releases and discharges Emcore
and any and all of its parent corporations, subsidiaries,
divisions, affiliated entities, predecessors, successors and
assigns, and any and all of its or their employee benefit and/or
pension plans or funds, and any of its or their past or present
officers, directors, stockholders, agents, trustees,
administrators, employees or assigns (whether acting as agents for
such entities or in their individual capacities) (hereinafter
collectively referred to as “Releasees”), from any and
all claims, demands, causes of action, fees and liabilities of any
kind whatsoever (based upon any legal or equitable theory, whether
contractual, common-law, statutory, decisional, federal, state,
local or otherwise), whether known or unknown, which Releasors ever
had, now have or may have against Releasees by reason of any actual
or alleged act, omission, transaction, practice, conduct,
occurrence, or other matter from the beginning of the world up to
and including the Release Effective Date.
(b) Without limiting the generality of the
foregoing subparagraph “(a)”, this Agreement is
intended to and shall release the Releasees from any and all claims
arising out of Employee’s employment with Releasees
a
