EXHIBIT 10.1
SEVERANCE AGREEMENT AND
RELEASE
This Severance Agreement and Release
(“Severance Agreement”) is executed this 17
th day of April, 2007, by and between Howard W.
Brodie (“Employee”) who resides at 123 West 93
rd St., New York, New York 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 April 27, 2007.
2. (a) On October 31, 2007, Emcore shall pay to
Employee 68 weeks of his salary in a lump-sum payment plus an
amount equal to 68 weeks of Employee’s automobile, garage and
auto insurance expenses (“Severance”). The total
Severance, which will be paid to Employee, is equal to $313,939
($292,400 +$21,539), 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 68 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) Emcore shall pay Employee $55,341, less
applicable tax withholdings and deductions, representing the amount
earned by Employee under EMCORE’s 2006 Executive Cash Bonus
Plan on the earlier to occur of (x) payment of the cash bonus under
the 2006 Executive Cash Bonus Plan to the CEO and (y) October 31,
2007.
(e) Emcore will also reimburse Employee for all
business expenses incurred by Employee through April 27, 2007
within thirty days of receipt of Employee’s expense
report.
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
including, but not limited to, by reason of Employee’s (i)
performance of his duties as General Counsel, Chief Legal Officer,
Secretary 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; and provided further that Releasors do not
release Releasees from any breaches of this Agreement.
(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 the termination
of Employee’s employment,
