EMCORE: EXHIBIT 10-2
Published on February 8, 2007
EMCORE
CONFIDENTIAL
February
8, 2007
BY
EMAIL
Thomas
G.
Werthan
169
Ticonderoga Blvd.
Freehold,
NJ 07728
|
Re:
|
Consulting
Services Agreement
|
Dear
Tom:
This
letter will act as our agreement (the “Consulting Agreement”)
regarding your performance of consulting services for EMCORE Corporation
(“EMCORE”
or
the
“Company”),
including any of EMCORE’s divisions, subsidiaries, or affiliates.
1. Personal
Service Agreement.
Both
EMCORE and you agree that, in consideration for the severance payments and
other
benefits described in the severance agreement dated February 8, 2007 between
you
and the Company (the “Severance Agreement”),
you
are
to personally provide all of the services under this Consulting
Agreement.
2. Job
Description.
The
scope of services to be rendered under this Consulting Agreement are as
follows:
A)
Support the Fiscal 2006 audit, preparation of documents to support the stock
option review, including tasks as required by the Special Committee, Deloitte
& Touche and representation at meetings which require your attendance such
as NASDAQ and SEC meetings.
B)
Assist
in the preparation of EMCORE’s Form 10-K for the fiscal year ended September 30,
2006 and any restatements required by the impact of the options review
adjustment.
C)
Assist
in the preparation of EMCORE’s first quarter Form 10-Q for the period ending
December 31, 2006.
Your
work
will be directed and overseen by Reuben F. Richards, Jr. You agree to devote
between 12 to 15 hours per week until the above assignments are completed,
but
in no event to continue past March 31, 2007 unless mutually agreed to by both
parties.
3. Conditions.
You
understand that, for all purposes under this Consulting Agreement, you will
operate as an independent contractor. Consequently, you retain full independence
in exercising judgment as to the time, place and manner of performing the
services hereunder. EMCORE will not provide any health or other employee
benefits under this Agreement.
4. Term
of Agreement.
This
Consulting Agreement shall commence as of the date of signature by all parties
and shall continue until the Form 10-K and first quarter Form 10-Q have been
prepared, with an estimated expiration date of March 31, 2007.
5. Expenses.
(a) EMCORE
also will reimburse you for your reasonable travel and business expenses in
accordance with EMCORE’s then-current policies.
(b) You
shall
transmit itemized monthly invoices to: EMCORE Corporation, Attn: Accounts
Payable, 10420 Research Rd. SE, Albuquerque, NM 87123 (with a copy to your
POC),
which EMCORE shall pay within thirty (30) days.
6. Confidentiality
Agreement.
(a) You
understand that during the term of this Consulting Agreement, you may have
access to unpublished and otherwise confidential information (“Confidential
Information”)
both
of a technical and non-technical nature, relating to the business of the
Company, its actual or anticipated business or financial condition, research
or
development, its technology or the implementation or exploitation thereof,
including without limitation information pertaining to customers, accounts,
vendors, prices, costs, materials, processes, material results, materials,
technology, device results, system designs, system specifications, materials
of
construction, trade secrets and equipment designs, including information
disclosed to the Company by others under agreements to hold such information
confidential. You agree to observe all Company policies and procedures
concerning such Confidential Information. Your obligations under this Consulting
Agreement will continue with respect to Confidential Information until such
information becomes generally available from public sources through no fault
of
your own.
(b) On
termination of this Consulting Agreement for any reason, you will promptly
deliver to the Company all documents, records, files, notebooks, manuals,
letters, notes, reports, customer and supplier lists, cost and profit data,
apparatus, drawings, blueprints, and any other material of the Company,
including all materials pertaining to Confidential Information developed by
you
or others, and all copies of such materials, whether of a technical, business
or
fiscal nature, which are in your possession, custody or control.
7. Indemnification.
(a) As
further consideration under the Consulting Agreement, EMCORE agrees to indemnify
and hold you harmless to the fullest extent lawful, from and against, and EMCORE
agrees that you shall have no liability to EMCORE or its owners, parents,
affiliates, securityholders or creditors for, any claims, liabilities, losses,
damages and expenses (or actions in respect thereof), as incurred (“Losses”),
related to or arising out of or in connection with your services under the
Agreement, whether or not resulting from your negligence, provided,
however,
that
EMCORE shall not be responsible for any of your Losses that are determined,
by a
final, non-appealable judgment by a court or arbitral tribunal, to have resulted
solely from your gross negligence or willful misconduct.
(b) EMCORE
shall not settle or compromise or consent to the entry of any judgment in,
or
otherwise seek to terminate any pending or threatened action, claim, suit or
proceeding in which you are or may be a party unless you have given its prior
written consent, or the settlement, compromise, consent or termination includes
an express unconditional release from all Losses arising out of such action,
claim, suit or proceeding.
(c) If,
for
any reason (other than your gross negligence or willful misconduct as provided
above) the foregoing indemnity is unavailable to you or insufficient to hold
you
harmless, then EMCORE, to the fullest extent permitted by law, shall contribute
to the amount paid or payable by you as a result of such Losses in such
proportion as is appropriate to reflect the relative benefits received or
proposed to be received by EMCORE on the one hand and by you on the other,
from
the services or, if allocation on that basis is not permitted under applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits received by EMCORE on the one hand and you on the other, but also
the
relative fault of EMCORE and you, as well as any relevant equitable
considerations. Notwithstanding the provisions hereof, your aggregate
contribution to all Losses shall not exceed the amount of fees actually received
by you with respect to the services rendered pursuant to the Consulting
Agreement.
(d) EMCORE
agrees to reimburse you for all expenses (including, without limitation, fees
and expenses of counsel) as they are incurred in connection with investigating,
preparing, defending or settling any action or claim for which indemnification
or contribution has or is reasonably likely to be sought by you, whether or
not
in connection with litigation in which you are a named party. If you appear
as a
witness, are deposed or are otherwise involved in the defense of any action
against EMCORE or the Company’s affiliates, officers, managers, directors or
employees (other than an action in which you are named as a defendant in
connection with your past services to the Company, either as an officer or
a
director), EMCORE will pay you (i) with respect to each day that you appear
as a
witness or are deposed and/or (ii) with respect to each day that you are
involved in the preparation therefor, (a) a fee of $3,500 per day with respect
to each appearance as a witness or a deponent and (b) at a rate of $350 per
hour
with respect to each hour of preparation for any such appearance, and EMCORE
will reimburse you for all reasonable out-of-pocket expenses incurred by you
by
reason of your being involved in any such action.
(e) The
indemnity, contribution and expense reimbursement obligations set forth herein
(i) shall be in addition to any liability EMCORE may have to you, as a result
of
your serving and/or having served as director and chief financial officer and
an
executive officer of EMCORE, and shall be in addition to any obligation EMCORE
may have to you under the by-laws or insurance policies, at common law or
otherwise, (ii) shall survive the expiration or termination of the Consulting
Agreement or your services hereunder, (iii) shall apply to any modification
of
your engagement and shall remain in full force and effect following the
completion or termination of the Consulting Agreement, (iv) shall be binding
on
any successor or assign of EMCORE and successors or assigns to EMCORE’s business
and assets and (vi) shall inure to the benefit of your successors and
estate.
8. Additional
Terms.
(a) EMCORE
may at any time assign all of its right, title and interest hereunder to a
corporation or other entity which shall assume EMCORE’s obligations under this
Consulting Agreement and thereafter be released of and from any and all
liability to you. In the event that EMCORE assigns its right, title or interest
hereunder, (i) EMCORE shall pay all outstanding balances due to you on or
before the date of assignment, and (ii) you may, upon two weeks notice,
terminate this Consulting Agreement. Because your duties and services in this
Consulting Agreement are special, personal and unique in nature, you may not
transfer, sell or otherwise assign your rights, obligations or benefits under
this Consulting Agreement. This Consulting Agreement is for the benefit of
the
Company, its successors and assigns and shall be binding upon your successors,
executors, administrators and other legal representatives.
(b) This
Consulting Agreement constitutes the entire agreement between the parties.
There
are no other agreements, promises, or understandings expressed or implied
between EMCORE and you with respect to the subject matter of this Consulting
Agreement.
(c) If
a
court of competent jurisdiction declares any provision of this Consulting
Agreement void or unenforceable, all other provisions shall nonetheless remain
in full force and effect.
9. Enforcement.
In the
event of a material breach of a provision of this Consulting Agreement by you,
in addition to any other available remedies to which EMCORE may be entitled,
EMCORE may obtain such equitable relief as may be appropriate, including
injunctive remedies.
10. Applicable
Law.
This
Consulting Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New Jersey, without application of
any
conflict of laws principles. The venue of any legal dispute shall be the State
of New Jersey, and the parties hereby consent to such exclusive
jurisdiction.
11. Survival
Clause.
The
obligations contained in Sections 6-11 of this Consulting Agreement shall
survive the termination of this Consulting Agreement and any extensions
hereto.
EMCORE
CONFIDENTIAL PAGE
If
the
foregoing agreement is acceptable to you, please sign and return the enclosed
copy of this letter in the space marked “Agreed to and Accepted,” and it will
serve as our agreement as of the date first above written.
Very
truly yours,
EMCORE
CORPORATION
By:__________________________
Reuben
F.
Richards, Jr.
Chief
Executive Officer
AGREED
TO AND ACCEPTED:
__________________________________
Thomas
G.
Werthan Date