Exhibit 10.20
August 1, 2003
CONFIDENTIAL
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Resignation and Separation Agreement
Dear ▇▇▇▇:
As we have discussed, you have resigned your employment with Electro
Scientific Industries, Inc. ("ESI" or the "Company") effective at the close of
business on August 5, 2003 (the "Separation Date").
The terms of a Resignation and Separation Agreement (the "Agreement")
are described below. Under this Agreement, if you choose to accept it, you will
receive severance compensation as set out below. In exchange, you agree to the
terms set forth in the Agreement.
A. Agreement
1. Resignation
The resignation of your position as General Counsel and Corporate
Secretary and as an officer of ESI or any affiliate company of ESI is effective
August 5, 2003.
2. Separation Pay
You will receive your final regular payroll and payout of your accrued,
unused or otherwise unpaid Flexible Time Off on the Separation Date. If you
accept the terms this Agreement, you will receive Separation Pay in the amount
of $13,229.35, less applicable withholding.
3. Benefits
3.1 Health and Dental Benefits
Your regular health and dental coverage will continue through August
31, 2003. You acknowledge that pursuant to COBRA, a federal law, you may, if
eligible, continue your group health benefits for a period of eighteen (18)
months from termination of your employment at your sole expense. You will
receive additional information explaining rates and your options under COBRA in
separate correspondence.
3.2 Other Qualified and Non-Qualified Plans and Programs
Except for health and dental benefits described above, effective on the
Separation Date, you will cease participation in all benefit plans and programs
of the Company, including, but not limited to, vacation and sick leave programs
and all employee stock programs.
3.3 Stock Options and Grants
Your rights under the Company's Stock Incentive Plans with respect to
stock options and stock grants shall be as stated in the plan documents or
related agreements. For purposes of stock option vesting and exercise your
termination date will be the Separation Date. Please refer to the stock options
agreements and stock options plans previously provided to you for details on
your right to exercise currently vested stock options.
3.4 No Other Benefits
You will not receive any other employee benefits except those specified
herein. You acknowledge that you have no vested retirement benefits under any
retirement plan or agreement based on your service to the Company. You agree to
waive the right to participate in any Company employee benefit plan and to
receive other fringe benefits or separation benefits from ESI, other than those
set forth herein.
4. Release of Claims
4.1 Release
In consideration for these separation benefits, and except as set forth
in section 4.2 below, you agree to fully release the Company and its
subsidiaries, related corporations, affiliates and joint ventures, partnerships,
predecessor and successor organizations and all current and former partners,
members, joint venturers, officers, directors, employees, agents, insurers,
shareholders, representatives and assigns from any and all liability, damages or
causes of action, direct or indirect, known or unknown including, without
limitation, all claims relating in any way to your employment with the Company
or the termination of that employment. This release includes, but is not limited
to, any claims for additional compensation, benefits or wages in any form,
damages, reemployment or reinstatement. This release also includes, but is not
limited to, all claims for relief or remedy under any state or federal laws,
including ERISA, 29 USC ss. 1001 et seq., Title VII of the Civil Rights Act of
1964, 42 USC ss. 2000e as amended, the Post Civil War Civil Rights Acts, 42 USC
▇▇.▇▇. 1981-88, the Civil Rights Act of 1991, the Equal Pay Act, the Age
Discrimination in Employment Act, the Americans With Disabilities Act, the Older
Workers' Benefit Protection Act, the Federal Family and Medical Leave Act, the
Worker Adjustment and Retraining Notification Act, the Rehabilitation Act of
1973, the Uniformed Services Employment and Reemployment Rights Act, the Fair
Labor Standards Act, Executive Order 11246, and all other laws and contract,
tort or other common or statutory law theories and all labor, employment or wage
laws of Oregon or any other state.
4.2 Exception to Release
Notwithstanding paragraph 4.1, you and the Company agree that
nothing in this Release of Claims shall apply to or reduce or eliminate any
rights to indemnity that you now have under statute, contract, policy of
insurance, or from any other source of indemnity for any claims that may be made
against you, or the defense of such claims. You will remit invoices for costs
related to any indemnity rights to J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
Administration and Chief Financial Officer until instructed to do otherwise. We
also agree that in the event any claims are made against you, or investigations
made (including any investigations by any regulatory agency) the Company will
provide you with full and complete access to Company records as needed to defend
against claims or to respond to any investigation.
5. Voluntary Release
You acknowledge that you have read the Agreement and understand that
you are releasing legal rights, including those identified in the release of
claims set forth above. You also acknowledge that, as consideration for
executing this Agreement, including the release of claims, you are receiving
additional benefits and compensation to which you would not otherwise be
entitled. You are advised that you may choose to seek review and advice
regarding this Agreement from an attorney.
6. Preservation and Non-Use of Confidential Information
You agree not to discuss this Agreement except with your financial,
tax, and legal advisors and with members of your family, and not to discuss
Confidential Information obtained during your employment with the Company. For
purposes of this Agreement, "Confidential Information" means any and all
confidential or proprietary information concerning the Company or its
affiliates, joint venturers or other related entities, the disclosure of which
could disadvantage ESI or which derives value from the fact that it is not
publicly known. Confidential Information includes trades secrets as defined
under the Uniform Trades Secrets Act.
You agree not to use Confidential Information, during the term of this
Agreement or after its termination, for any personal or business purpose, either
for your own benefit or that of any other person, corporation, government or
other entity.
You also agree that you will not disclose or disseminate any
Confidential Information, directly or indirectly, at any time during the term of
this Agreement or after its termination, to any person, agency, or court unless
compelled to do so pursuant to legal process (e.g., a summons or subpoena) or
otherwise required by law and then only after providing the Company with prior
notice and a copy of the legal process.
Finally, you agree that you have already returned or will return upon
execution of this Agreement any confidential information which is in your
possession.
7. Dispute Resolution
This Agreement shall be construed in accordance with and governed by
the statutes and common law of the state of Oregon. Any disputes arising in
connection with the terms or enforcement of this Agreement shall be resolved by
confidential mediation or binding arbitration in accordance with the procedures
of the American Arbitration Association or other procedures agreed upon by me
and the Company. The costs of mediation and arbitration shall be borne equally
by you and the Company.
8. Severability
The provisions of this Agreement shall be considered severable, such
that if any provision or part thereof shall at any time be held invalid under
any law or ruling, any and all such other provision(s) or part(s) thereof shall
remain in full force and effect and continue to be enforceable.
9. Entire Agreement
This Agreement contains the entire agreement between the parties. There
have been no promises, inducements or agreements not expressed in this
Agreement. No modification shall be made unless in writing and signed by both
parties.
10. Acknowledgement
You acknowledge that this Agreement contains the entire agreement and
understanding between you and the Company and supersedes and replaces all prior
negotiations and agreements concerning the subjects of this Agreement. You
acknowledge that (a) you have read the Agreement and understand the effect of
your release and that you are releasing legal rights; (b) you have had adequate
time to consider this Agreement (as set out below); (c) as consideration for
executing this Agreement, you have received additional benefits and compensation
of value to which you would not otherwise be entitled; and (d) you have been,
and hereby are advised in writing to review this Agreement with legal counsel of
your choice.
11. Time for Consideration of Offer and Agreement
You acknowledge that the Company provided you this Agreement on or
before Friday, August 1, 2003 and that this offer provided you with a period of
seven (7) days from the date of receipt for your consideration of the offer (the
"consideration period"). In the event you have not executed this Agreement by
the expiration of the offer period on Friday, August 8, 2003, the offer shall
expire. You may execute this Agreement at any time during this consideration
period. This Agreement shall be effective on the date it is signed.
Sincerely,
ELECTRO SCIENTIFIC INDUSTRIES, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
I have read and understand the foregoing Agreement and, by signing
below, I voluntarily enter into this Agreement and understand that I am waiving
and releasing legal claims that I may have against the Company.
Accepted August 8, 2003
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/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Signature