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Exhibit
10.1
SEPARATION AND RELEASE
AGREEMENT
This Agreement is entered
into by and between Electro Scientific Industries, Inc.
(“ESI”), and John Metcalf (“Employee”) with
respect to the following facts:
A. Employee’s
employment with ESI ends on September 29, 2007.
B. ESI and Employee desire to
enter into an agreement regarding Employee’s
separation.
The parties agree as
follows:
1. Wages and Flexible Time
Off . On Employee’s last day of employment, Employee
received all earned wages and accrued but unused Flexible Time Off
pay.
2. Separation Pay . In
consideration of Employee signing this Agreement, and the covenants
and releases given herein, ESI will pay Employee a sum equal to
twenty-six (26) week’s base salary at Employee’s
current rate of pay, less applicable withholdings
(“Separation Pay”) on the first normal payroll date
following January 1, 2008.
3. Equity
Incentives.
a. Stock Options awarded to
Employee during his employment will be governed by the terms of the
Agreements and Terms and Agreements pursuant to which they were
awarded.
b. Restricted Stock Units
awarded to Employee on the first date of his employment (4,000
units) will become fully vested to the extent not previously
vested, on the final day of his employment with the
company.
4. Effective Date .
The Effective Date of this Agreement shall be the 8th day after
Employee properly signs it, as described in Paragraph 8
below.
5. Performance and
Duties . Employee agrees to remain actively at work as
requested through September 29, 2007, and to perform duties as
requested in a professional and sufficient manner, and to abide by
all policies of ESI. Employee agrees now and in the future that
Employee will assist ESI in good faith to the best of
Employee’s ability in the defense of any claim brought
against ESI or its current or former employees or agents of which
Employee has any personal knowledge and ESI agrees it will
reimburse Employee’s reasonable out-of-pocket expenses in
providing such assistance. Employee understands that compliance
with these Performance and Duties expectations is a condition
precedent to being eligible for the Separation Pay and
Outplacement.
5. Confidential
Information . Employee agrees not to use or disclose
confidential, proprietary or trade secret information learned while
an employee of ESI or its predecessors, including the terms of this
Agreement, and covenants not to breach that duty. Confidential,
proprietary, and trade secret information may include manufacturing
processes, business plans,
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customer lists, drawings, documents,
reports, facilities, formulas, computer data, computer programs
(including algorithms, flowcharts, source code, object code, and
firmware). This Agreement not to disclose confidential information
is consistent with the ESI Employee Confidentiality and Assignment
Agreement (“Confidentiality Agreement”), which, if
signed by Employee, continues to apply after employment has ended.
If applicable, a copy of the Confidentiality Agreement is attached.
Employee also agrees to return any and all ESI property and/or
information in Employee’s possession.
6. General Release .
Employee acknowledges that Employee would not be entitled to
receive the Separation Pay and Outplacement provided for herein
absent Employee’s execution of and compliance with this
Agreement. In consideration of the Separation Pay and other
benefits, Employee, individually and on behalf of Employee’s
spouse, heirs and assigns, to the fullest extent permitted under
applicable law, unconditionally releases and discharges ESI, its
subsidiaries and their respective directors, officers,
shareholders, employees, agents, successors and assigns, all in
their representative and individual capacities, and any related
corporati
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