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 respecti
