EXHIBIT 10.1
TRANSITION AGREEMENT AND RELEASE
Transition Agreement and Release ("Agreement") executed this ___ day
of _____, 2002, by and between Xxxx Xxxxxxx ("Employee") who resides at 0000
Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, and Emcore Corporation
("Emcore").
In consideration of the mutual promises described below and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties agree as follows:
1. Employee shall cease his current duties and responsibilities
effective March 18, 2002. From March 18, 2002 until April 1, 2002 ("Transition
Period"), Employee shall remain employed by Emcore on a full-time basis, shall
be paid at a rate of $6,730.77 for that two week period and shall report to
Xxxxx Xxxxxxx.
2. (a) Contingent upon Employee's continued employment in good
standing throughout the transition period, beginning on April 1, 2002, Emcore
shall pay to Employee his biweekly salary, less applicable withholdings and
deductions, for a seven month and two week period, which shall end on November
15, 2002. Such amount will be paid on regular paydays.
(b) Also contingent upon Employee's continued employment in good
standing on April 1, 2002, Emcore shall continue to pay the employer's portion
of the premiums associated with health insurance benefits for a period of seven
months and two weeks beginning on April 1, 2002 and ending on November 15, 2002.
Employee acknowledges that Emcore may continue to deduct from Employee's
biweekly salary an amount equal to the employee's portion of the premiums
associated with health insurance benefits for seven months and two weeks
following April 1, 2002.
(c) Additionally, Emcore shall reimburse Employee for up to $5,000.00
of actual costs of outplacement services, which shall be rendered at any time on
or prior to March 18, 2003, provided that Employee presents to Emcore receipts
for such services.
(d) Furthermore, incentive stock options previously granted to
Employee with a vesting date on or before March 18, 2003 shall vest upon the
Release Effective Date of this Agreement as defined in paragraph "4" below.
(e) Finally, Emcore shall pay to Employee an amount equal to the value
of up to 50% of his 2001 Bonus Potential (which has a cash value equal to
$43,750.00) in the following manner: upon the Release Effective Date of this
Agreement as defined in paragraph "4" below, Emcore shall vest Employee's
incentive stock options that were granted on December 1, 1998 and October 3,
2001 to the extent that those incentive stock options would have vested on or
before March 18, 2004 ("Accelerated Options"). On June 13, 2002, Emcore will pay
to Employee a cash amount equal to $43,750.00, less the cash proceeds that
Employee would have received if he had effected a cashless exercise and sale of
the Accelerated Options on June 13, 2002. For purposes of the preceding
calculation, the cashless exercise and sale will deemed to have been effected at
the closing price of the stock on June 13, 2002. If however, the Employee would
have received less than $0 upon effecting a cashless exercise and sale, the
Employee will receive a cash payment from Emcore in the amount of $43,750.
3. Employee agrees and acknowledges that the payments and benefits
provided for in paragraph "2" exceed any benefits to which he would otherwise be
entitled under any policy, plan, and/or procedure of Emcore or any agreement
with Emcore.
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 executing it before a notary and returning
it to Xx. Xxxxxxx Xxxxxxxx, Human Resources Director, Emcore Corporation, 000
Xxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, 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 Xx. Xxxxxxxx
at the address listed above, and delivering it to Xx. Xxxxxxxx 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 and for 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.
(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
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termination of Employee's employment, including but not limited to any claim(s)
under or arising out of (i) the Age Discrimination in Employment Act, as
amended, or the Older Workers Benefit Protection Act; (ii) Title VII of the
Civil Rights Act of 1964, as amended; (iii) the Americans with Disabilities Act,
as amended; (iv) the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (excluding claims for accrued, vested benefits under any employee
benefit plan of Emcore in accordance with the terms of such plan and applicable
law); (v) the New Mexico Human Rights Act; (vi) the California Fair Employment
and Housing Act; (vii) the California Equal Pay Law; (viii) the California
Sexual Orientation Bias Law; (ix) the California Labor and Government Codes; (x)
the California Xxxxx Act; (xi) the New Jersey Law Against Discrimination, the
New Jersey Equal Pay Act, the New Jersey Family Leave Act; (xii) the
Pennsylvania Human Rights Act; (xiii) alleged discrimination or retaliation in
employment (whether based on federal, state or local law, statutory or
decisional); (xiv) the terms and conditions of Employee's employment with
Emcore, the termination of such employment, and/or any of the events relating
directly or indirectly to or surrounding that termination; and (xv) any law
(statutory or decisional) providing for attorneys' fees, costs, disbursements
and/or the like.
(c) As a further consideration and inducement for this Agreement, to
the extent permitted by law, Employee hereby waives and releases any and all
rights under Section 1542 of the California Civil Code or any analogous state,
local, or federal law, statute, rule, order or regulation that Employee has or
may have with respect to the Releasees. California Civil Code Section 1542 reads
as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Employee hereby expressly agrees that this Agreement shall extend and apply to
all unknown, unsuspected and unanticipated injuries and damages, as well as any
that are now disclosed, arising prior to Employee's execution of this Agreement.
6. (a) Employee agrees that he has not and will not engage in any
conduct that is injurious to Emcore's or Releasee's reputation or interest,
including but not limited to (i) divulging, communicating, or in any way making
use of any confidential or proprietary information acquired in the performance
of his duties at Emcore; and (ii) publicly disparaging (or inducing or
encouraging others to publicly disparage) Emcore or Releasees.
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(b) Employee agrees to return to Emcore any and all originals and
copies of documents, materials, records or other items in his possession or
control belonging to Emcore or containing proprietary information relating to
Emcore.
(c) Employee acknowledges that the terms of the Confidentiality
Agreement between Employee and Emcore dated October 21, 1996, attached hereto as
Exhibit "A," are incorporated herein by reference, and Employee agrees and
acknowledges that he is bound by its terms.
(d) Employee acknowledges and agrees that he will continue to comply
with Emcore's policy against xxxxxxx xxxxxxx for a period of three months
beginning on April 1, 2002, and agrees that he shall not buy or sell Emcore
stock during that period unless it is within a window period as set forth in
Emcore's Securities Trading Policy which is attached hereto as Exhibit "B."
7. (a) Employee will cooperate with Emcore and/or its subsidiaries and
affiliates and its/their counsel in connection with any investigation,
administrative proceeding or litigation relating to any matter in which Employee
was involved or of which Employee has knowledge.
(b) Employee agrees that, in the event he is subpoenaed by any person
or entity (including, but not limited to, any government agency) to give
testimony (in a deposition, court proceeding or otherwise) which in any way
relates to Employee's employment with Releasees, he will give prompt notice of
such request to Xxxxxxx Xxxxxxxx, Emcore's Human Resources Director, or her
successor, and will make no disclosure until Emcore has had a reasonable
opportunity to contest the right of the requesting person or entity to such
disclosure.
8. The terms and conditions of this Agreement are and shall be deemed
to be confidential, and shall not be disclosed by Employee to any person or
entity without the prior written consent of Xxxxxxx Xxxxxxxx, Emcore's Human
Resources Director, except if required by law and to Employee's accountants,
attorneys or spouse, provided that they agree to maintain the confidentiality of
this Agreement. Employee further represents that he has not disclosed the terms
and conditions of this Agreement to anyone other than his attorneys, accountants
and spouse.
9. The making of this Agreement is not intended, and shall not be
construed, as an admission that Releasees have violated any federal, state or
local law (statutory or decisional), ordinance or regulation, breached any
contract, or committed any wrong whatsoever against Employee.
10. The parties agree that this Agreement may not be used as evidence
in a subsequent proceeding except in a proceeding to enforce the terms of this
Agreement.
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11. Employee acknowledges that: (a) he has carefully read this
Agreement in its entirety; (b) he has had an opportunity to consider fully the
terms of this Agreement; (c) he has been advised by Emcore in writing to consult
with an attorney of his choosing in connection with this Agreement; (d) he fully
understands the significance of all of the terms and conditions of this
Agreement and he has discussed it with his independent legal counsel, or has had
a reasonable opportunity to do so; (e) he has had answered to his satisfaction
any questions he has asked with regard to the meaning and significance of any of
the provisions of this Agreement; and (f) he is signing this Agreement
voluntarily and of his own free will and assents to all the terms and condition
contained herein.
12. This Agreement is binding upon, and shall inure to the benefit of,
the parties and their respective heirs, executors, administrators, successors
and assigns.
13. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, void, or unenforceable, such provision
shall be of no force and effect. However, the illegality or unenforceability of
such provision shall have no effect upon, and shall not impair the
enforceability of, any other provision of this Agreement; provided, however,
that, upon any finding by a court of competent jurisdiction that the release and
covenants provided for by paragraph "5" of this Agreement is illegal, void, or
unenforceable, Employee agrees to execute a release, waiver and/or covenant that
is legal and enforceable. Finally, any breach of the terms of paragraphs "6,"
"7" and/or "8" shall constitute a material breach of this Agreement as to which
Emcore may seek appropriate relief in a court of competent jurisdiction.
14. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New Jersey, without giving effect to
the conflict of laws provisions thereof.
15. This Agreement (including the Exhibits attached hereto)
constitutes the complete understanding between the parties and supersedes any
and all agreements, understandings, and discussions, whether written or oral,
between the parties. No other promises or agreements shall be binding unless in
writing and signed after the Release Effective Date by the parties to be bound
thereby.
Dated: ____________________ ____________________________
Xxxx Xxxxxxx
EMCORE Corporation
By:_____________________________ Date:_______________________
Xxxxxxx Xxxxxxxx
Human Resources Director
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