EXHIBIT 10-1: BRODIE SEVERANCE AGREEMENT


     

    
      

      

    

    EXHIBIT
      10.1


    SEVERANCE
      AGREEMENT AND RELEASE

    


    This
      Severance Agreement and Release (“Severance Agreement”) is executed this
      17th
      day of
April,
      2007, by
      and between Howard W. Brodie (“Employee”) who resides at 123 West 93rd
      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, 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
      Unruh Act; (xi) the New Jersey Law Against Discrimination, the New Jersey Equal
      Pay Act, the New Jersey Family Leave Act; (xii) the Illinois Human Rights Act;
      (xiii) the Virginia Human Rights Act; (xiv) the Pennsylvania Human Relations
      Act; (xv) alleged discrimination or retaliation in employment (whether based
      on
      federal, state or local law, statutory or decisional); (xvi) 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 (xvii) 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.
This
      release does not extend to those rights, which as a matter of law cannot be
      waived, including but not limited to unwaivable rights Employee may have under
      the California Labor Code. Nothing in this Agreement shall limit Employee’s
      right to file a charge or complain with any state or federal agency or to
      participate or cooperate in such a manner. In the event that any claim or suit
      is brought on behalf of Employee, Employee waives any and all rights to receive
      monetary damages or injunctive relief in his favor.

    


    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,
      except as required by law, or (ii) publicly disparaging (or inducing or
      encouraging others to publicly disparage) Emcore or Releasees.

                (b) Employee
      agrees to return to Emcore any and all originals of documents, materials,
      records or other items in his possession or control belonging to Emcore or
      containing proprietary information relating to Emcore, but may retain copies
      thereof for archival and legal defense purposes. Employee agrees to remove
      all
      Emcore proprietary information from his laptop. Employee shall be permitted
      to
      retain his laptop computer and cell phone. Emcore shall continue to pay
      Employee’s cell phone charges until April 27, 2007.

                

                (c) Employee
      acknowledges that the terms of the Confidentiality and Invention Assignment
      Agreement (“Confidentiality Agreement”) between Employee and Emcore signed by
      the Employee during his employment, remains in full force and effect, and
      Employee agrees and acknowledges that he is bound by its terms. Without limiting
      the generality of the foregoing, Emcore acknowledges that pursuant to N.J.
      Advisory Committee on Professional Ethics Opinion 708 (July 10, 2006) Employee
      is not bound by the non-compete and non-solicitation covenants contained in
      his
      Confidentiality Agreement. Employee understands and acknowledges that as counsel
      to Emcore and, where appropriate, affiliated entities (collectively, the
“Company”), Employee has owed ethical and fiduciary obligations to the Company.
      Employee further understands and acknowledges that some of these obligations
      will continue after Employee ceases to be employed by the Company and that
      these
      continuing obligations include, at a minimum, the duty to protect information
      relating to the representation of a client (sometimes referred to as the duty
      to
      protect former client confidences and secrets) and the duty to avoid former
      client conflicts of interest. Employee hereby represents that to the best of
      Employee’s ability, and in accordance with the Confidentiality Agreement,
      Employee will fully comply with all such obligations.

     

    7. (a) Employee
      will reasonably 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, including without limitation the filing
      of
      all Emcore’s periodic reports required by the Securities Exchange Act of 1934
      and completion of all matters related to the options investigation undertaken
      by
      the Special Committee of Emcore’s Board of Directors. Emcore will continue to
      indemnify, defend and reimburse Employee in accordance with the terms of
      Emcore’s By-Laws and insurance policies and will also compensate Employee for
      his reasonable travel and lodging expenses for any time that Employee is
      required to devote to such investigation, administrative proceeding or
      litigation. Emcore shall compensate Employee at the rate of $350/hour for any
      time that Employee is required to devote to such investigation, administrative
      proceeding or litigation. Employee will be released from this obligation as
      of
      September 30, 2007. All payments required by this Paragraph 7(a) shall be paid
      within 30 days of the date that Employee performs the relevant
      service.

     

    (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 Monica Van Berkel,
      Vice President, Human Resources, Emcore Corporation, 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, unless Employee
      is
      legally compelled to make such disclosure and, in the opinion of Employee’s
      counsel, Employee would be prejudiced by not making such disclosure prior to
      Emcore exercising its rights to contest.

    


    8. The
      making of this Agreement is not intended, and shall not be construed, as an
      admission that Releasees or Releasors have violated any federal, state or local
      law (statutory or decisional), ordinance or regulation, breached any contract,
      or committed any wrong whatsoever.

    


    9. 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.

    


    10. 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.

     

    11. This
      Agreement is binding upon, and shall inure to the benefit of, the parties and
      their respective heirs, executors, administrators, successors and
      assigns.

    


    12. 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. Emcore
      may seek appropriate relief in a court of competent jurisdiction, including,
      but
      not limited to, permanent or temporary injunctive relief against Employee,
      without the requirement of posting a bond or other security, for any material
      breach by Employee of Paragraph 6 and/or 7 of this Agreement.

    


    13. This
      Agreement shall be governed by, and construed and enforced in accordance with,
      the laws of the State of New Jersey, without regard to the conflict of laws
      provisions thereof.

    


    14. This
      Agreement (including the Exhibits attached hereto) constitute the complete
      understanding between the parties and supersede 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.

    


    15. The
      Parties acknowledge that Section 409A of the Internal Revenue Code of 1986,
      as
      amended (“Section 409A”) imposes an additional tax (the “409A Tax”) on deferred
      compensation (as defined under Section 409A) that does not meet certain
      requirements, and that as of the date this Agreement is executed, final
      regulations implementing Section 409A have not been implemented. The Parties
      agree that it is not intended that the 409A Tax apply to any payment or the
      provision of any benefit hereunder, and accordingly, the provisions of this
      Paragraph 15 shall apply to any payment or benefit to which the 409A Tax would
      apply, regardless of whether such payment or benefit is explicitly made subject
      to this Paragraph 15. If any of the Parties reasonably determine that any
      payment or benefit permitted or required under this Agreement would result
      in
      409A Tax, and if such 409A Tax could be avoided by delaying the payment or
      postponing the provision of the benefit, the Parties agree to work in good
      faith
      to delay or postpone such payment or provision of the benefit until such time
      as
      it may be made or provided without the 409A Tax being imposed. If delay or
      postponement of a payment or the provision of a benefit would not avoid the
      imposition of the 409A Tax, then the Parties shall promptly agree in good faith
      on appropriate provisions to avoid such risk without materially changing the
      economic value of this Agreement to any Party.

    


    


    /s
      Howard
      Brodie 
      Date:
      April 17, 2007

    Howard
      W.
      Brodie       

    


    


    By: /s
      Reuben
      F. Richards, Jr.    Date:
      April 17, 2007

    Reuben
      F.
      Richards, Jr.

    Chief
      Executive Officer