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EXHIBIT 10.1
SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement and Release ("Severance
Agreement") is executed this 8 th day of
February, 2007, by and between Thomas G. Werthan
("Employee") who resides at 169 Ticonderoga Blvd, Freehold, New
Jersey and Emcore Corporation ("Emcore" or the "Company"). Employee
and Emcore shall sometimes be referred to herein as the "Parties"
and shall sometimes be referred to individually as
"Party."
1. Employee’s
employment is terminated effective February 19, 2007.
2. (a)
As soon as administratively practicable following
August 20, 2007, Emcore shall pay to Employee 82 weeks of his
salary in a lump-sum payment ("Severance"). The total Severance,
which will be paid to Employee, is equal to $387,040, less
applicable tax withholdings and deductions.
(b) In accordance
with the Company’s health plans, Employee will be eligible to
exercise his rights to continued 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
pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"), as amended. To the extent Employee elects COBRA
continuation coverage, the Company shall continue to pay the
employer’s portion of the COBRA premiums for the period of
time that Employee is eligible for COBRA continuation coverage, up
to a maximum of 82 weeks, equal to the amount that the Company
would have otherwise paid for health insurance coverage if Employee
were an active employee during such time. Up until the Severance
payment is made, the Company will also pay Employee’s portion
of the COBRA premiums, the total of which shall then be deducted
from the Severance payment. After the Severance payment is made,
Employee shall be responsible for 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, 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.
(d) Pursuant to the
terms of that certain Promissory Note dated December 1, 1995,
Emcore shall forgive all principal and interest due and owing on
the 1995 loan to Employee in the amount of $82,000. Employee agrees
that he shall be responsible for the timely payment of all personal
taxes related to the loan forgiveness.
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. Except for the Severance and benefits set forth in
Paragraph 2, Employee acknowledges that Employee has received all
wages, bonuses, salaries, fees, vacation pay, benefits or any other
form of compensation to which Employee was entitled.
4. Employee shall
have twenty-one (21) days from the date of his 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 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 her 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
described above. 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 and on behalf of
his 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 relating to or arising
from Employee’s employment with the Company or the
termination thereof; provided, however, that Releasors do not
release Emcore from any defense, indemnification or reimbursement
obligation that Emcore has or may have to Employee by law, under
Emcore’s By-Laws or under any insurance policy in effect in
connection with Employee’s (i) performance of his duties as a
director, chief financial officer or executive officer of Emcore,
(ii) conduct in connection with the granting and accounting for
stock options or investigation and analysis of past stock option
grant practices, or (iii) any post-employment consulting
arrangements that Employee may provide to Emcore in connection with
the Consulting Agreement (defined below).
(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 the Company
and/or
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