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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 and/or the termination of Employee’s employment,
including but not limited to any claim(s) under or arising out of
(i) the Age Dis
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