Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This Amended and Restated Employment Agreement (this "Agreement") is
entered into as of January 15, 2007, by and between Xxxxx X. Xxxxxx (the
"Executive") and Ultratech, Inc., a Delaware corporation (the "Company"), and,
except as otherwise provided herein, shall be effective as of January 1, 2004.
WITNESSETH:
WHEREAS, the Executive is currently a party to an employment agreement
with the Company dated November 24, 2003 (the "Prior Agreement") that completely
and totally superseded an employment agreement between the parties dated as of
June 8, 1999;
WHEREAS, the Company desires that the Executive continue to be employed
by the Company and the Executive is willing to continue to be employed by the
Company; and
WHEREAS, the Company and the Executive desire to amend and restate the
terms and conditions of the Prior Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and the Executive agree as follows:
1. Duties.
1.1 Retention. The Company does hereby retain , engage, and employ the
Executive as its Senior Vice President, Finance, Chief Financial
Officer, and Secretary, reporting to the Chief Executive Officer of
the Company (the "Chief Executive Officer"), and the Executive does
hereby accept and agree to such retention , engagement, and
employment. The Executive shall serve the Company in such positions
and shall have the duties, responsibilities and authorities consistent
with such positions as well as any other reasonable duties determined
by the Chief Executive Officer.
1.2 No Other Employment. During the Executive's employment by the Company,
the Executive shall devote substantially all of his business time,
energy, and skill to the performance of his duties for the Company.
1.3 No Breach of Contract. The Executive hereby represents to the Company
that the execution and delivery of this Agreement by the Executive and
the Company and the performance by the Executive of the Executive's
duties hereunder shall not constitute a breach of, or otherwise
contravene, the teluis of any employment or other agreement or policy
to which the Executive is a party or otherwise bound. The Company
hereby represents to the Executive that it is authorized to enter into
this Agreement and that the execution and delivery of this Agreement
to the Executive and the employment of the Executive hereunder shall
not constitute a breach of, or otherwise contravene, the terns of any
law, agreement or policy by which it is bound.
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2. At-Will Employment.
The Executive and the Company agree that Executive's employment with the
Company is and shall at all times during the Executive's employment
hereunder be "at-will" employment. The Company may terminate the
Executive's employment at any time for any reason, with or without Cause,
by providing thirty (30) days' written notice to the Executive. The
Executive may terminate his employment with the Company by providing thirty
(30) days' written notice to the Company. Notwithstanding the foregoing,
the Company may relieve the Executive of his duties immediately or at any
time during the thirty-day period following the written termination notice
provided by the Company or the Executive hereunder. No provision of this
Agreement shall be construed as conferring upon the Executive a right to
continue as an employee of the Company, and the "at-will" relationship
between the Executive and the Company may not be altered except as agreed
by the Executive and the Company in writing.
3. Compensation.
3.1 Base Salary. The Executive's initial Base Salary shall be at a rate of
$275,000 per year, paid in accordance with the Company's regular
payroll practices in effect from time to time, but not less frequently
than monthly. The Executive's Base Salary shall be reviewed annually
and may be adjusted by the Board of Directors of the Company (the
"Board") or the Compensation Committee of the Board (the "Compensation
Committee"). (As used in this Agreement, "Base Salary" shall mean Base
Salary as adjusted from time to time.)
3.2 Annual Bonus. While employed hereunder, the Executive shall be
considered for an annual incentive bonus ("Annual Bonus") of up to 40%
of his annual Base Salary, based upon the achievement of performance
objectives established by the Compensation Committee. Payment of up to
50% of the Executive's Annual Bonus may be deferred and paid out in
equal annual installments over a period of no more than three years
with interest at prime as set forth in The Wall Street Journal from
time to time (the "Deferral Period"), during which Deferral Period the
unpaid portion of the deferred Annual Bonus may be subject to
forfeiture if the Executive terminates employment without Good Reason
(as defined in Section 7.2.1) or is terminated by the Company for
Cause (as defined in Section 6.1.1). The Executive's performance
objectives and maximum level of Annual Bonus as a percentage of Base
Salary, as well as the payment terms for the Annual Bonus, shall be
reviewed annually and may be adjusted by the Compensation Committee,
including, without limitation, an adjustment to increase the maximum
level of Annual Bonus as a percentage of Base Salary.
3.3 Equity Compensation.
3.3.1 Future Grants. In addition to the stock options previously
granted to the Executive, the Executive shall be eligible for
periodic grants of stock options or other equity awards under the
Company's equity award program, subject to the Executive's
continued employment hereunder. The teens, exercise price (if
applicable), vesting period, any post-termination of employment
provisions, and other provisions of each stock option or other
equity award granted pursuant to this Section 3.3 shall, subject
to the express provisions of this Agreement, be determined by the
Compensation Committee at the time of grant of the option or
other equity award.
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3.3.2 Acceleration and Extension. Notwithstanding Section 3.3.1, if
the Executive's employment is terminated (i) by the Company for
any reason other than for Cause (as defined in Section 6.1.1) or
(ii) by the Executive with Good Reason (as defined in Section
7.2.1) or (iii) on account of death or Disability, then each
stock option and other equity award granted on or after July 21,
2003 shall thereupon become vested as to an additional 25% of the
shares of stock subject thereto (or such lesser percentage as to
make the award 100% vested). Further, in the event of a Change of
Control (as defined in Section 8.1.1) or a Corporate Transaction
(as defined in Section 8.1.2), all of the options or other equity
awards described in the preceding sentence shall immediately be
fully vested. To the extent that the equity awards described in
this Section 3.3.2 are stock options and have become vested by
their terms or become vested as described herein, such stock
options shall remain vested and exercisable at least until the
date that is one year and ninety (90) days after the termination
of the Executive's employment as described in clauses (i), (ii),
or (iii) of this Section 3.3.2 or any termination of the
Executive's employment following a Change of Control or a
Corporate Transaction (or such later date as may be specified in
the award agreement), but in no event will such options be
exercisable after the expiration of their original terms. Each of
the Executive's stock options granted prior to July 21, 2003
shall be amended to add the foregoing acceleration of vesting and
extension of exercise period provisions at such time, if any,
that the Company's Board of Directors determines, in its sole
discretion, that such amendments and the related accounting
charges would not adversely affect, when relevant, in any way,
the Company's condition (financial or otherwise), financial
statements, earnings, earnings per share or other relevant
Company information.
4. Benefits.
4.1 Pension and Welfare Plans. While the Executive is employed hereunder,
he shall be entitled to participate in all employee pension and
welfare benefit plans and programs made available to the Company's
senior level executives or to its employees generally, as such plans
or programs may be in effect from time to time.
4.2 Reimbursement of Business and Other Expenses
4.2.1 Expense Reimbursement. The Executive is authorized to incur
reasonable expenses in carrying out his duties and
responsibilities under this Agreement and the Company shall
promptly reimburse him for all business expenses incurred in
connection with carrying out the business of the Company, subject
to documentation in accordance with the Company's expense
reporting policy.
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4.2.2 Legal Expenses. The Company shall promptly reimburse the
Executive for his legal expenses, up to a maximum of $3,000,
incurred in negotiating and documenting this Agreement with the
Company.
4.3 Vacation. During the Executive's employment hereunder, the Executive
shall be entitled to vacation in accordance with the Company's
vacation policy for its executive officers.
4.4 Retiree Health Coverage. Effective the earliest of (A) the occurrence
of a Change of Control (as defined in Section 8.1.1) while Executive
is serving as an executive officer of the Company, (B) the occurrence
of a Corporate Transaction (as defined in Section 8.1.2) while
Executive is serving as an executive officer of the Company, or (C)
the first date on which (1) Executive is at least sixty-two (62) years
old and (2) Executive has served as an executive officer of the
Company for ten (10) consecutive years (and is then serving as such),
and notwithstanding anything contained herein to the contrary, the
Executive and his spouse on the date of his termination of employment
(his "Spouse") shall each be entitled to the retiree health coverage
described herein for the remainder of his or her life following
Executive's termination of employment with the Company for any reason.
The retiree health coverage provided by the Company to the Executive
and his Spouse shall be comparable to the coverage provided by the
Company to them immediately prior to the termination of the
Executive's employment until they become covered by Medicare. Once the
Executive or his Spouse becomes covered by Medicare, the Company shall
provide retiree health coverage that, together with Medicare coverage,
is comparable to the coverage that the Company provided to him or her
immediately prior to the Executive's termination of employment. Such
retiree health coverage shall, to the extent possible, be provided
through continued health care coverage for the Executive and his
Spouse under the Company's group health plan pursuant to the
provisions of Section 4980B of the Internal Revenue Code of 1986, as
amended, and Section 10116.5 of the California Insurance Code
("COBRA"). If COBRA coverage is not available or it is exhausted or no
longer available, such retiree health coverage shall be provided
through health insurance policy or policies acquired by the Executive
and/or his Spouse until age 65 and thereafter through insurance policy
or policies providing Medicare supplemental coverage obtained by them,
with the Company to reimburse the Executive and/or his Spouse for the
premiums paid for such coverage, to the extent expressly provided
below. The Executive and/or his Spouse shall provide the Company with
evidence of the applicable health insurance or Medicare supplemental
health insurance policy. The cost of such retiree health care coverage
for the Executive and his Spouse shall be shared between the Company
and the Executive as follows:
(i) For each period the Executive and/or his Spouse are provided
post- retirement health care coverage under the Company's group
health plan, the Executive or his Spouse shall pay the Company a
dollar amount for that coverage equal to the cost charged active
employees of the Company or their spouses for such individual
and/or spousal coverage for the same period under the plan, and
the Company shall be responsible for the payment of any
additional costs required to provide such coverage. The payments
required of the Executive must be made on or before the date the
Executive would have to pay for such coverage if an active
employee under the Company's group health plan.
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(ii) To the extent such post retirement health care coverage is
provided through health insurance policies acquired by the
Executive and/or his Spouse, the Company shall reimburse the
Executive and/or his Spouse for the portion of each premium paid
by them in excess of the dollar amount the Executive and/or his
Spouse would have had to pay for health care coverage for the
period covered by the premium had the Executive and/or his Spouse
been an active participant under the Company's group health plan
at that time. The applicable insurance premiums shall be paid by
the Executive and/or the Spouse within ten (10) days after each
due date, and the Company shall promptly reimburse the Executive
and/or his Spouse for its share of each such insurance premium,
with such reimbursement to be made in all events not later than
the close of the calendar year in which the premium was paid by
the Executive and/or his Spouse or (if later) within two and
one-half months following the premium payment date.
To the extent the post-retirement health care coverage required
hereunder is provided through a self-funded reimbursement program
maintained by the Company, the Executive shall, within thirty
(30) days after his receipt of each invoice for a reimbursable
health or medical care expense under this Section 4.4, submit a
copy of such invoice to the Company for reimbursement, and the
Company shall pay such reimbursement within thirty (30) days
following receipt of the submitted invoice.
The Executive and his Spouse shall be solely responsible for any
federal, state or local tax liability arising from the
post-retirement health care coverage and benefits provided them
hereunder, and the Company shall have no obligation to indemnify
or reimburse them for any tax liability they so incur.
5. Death or Disability.
5.1 Definition of Disabled and Disability. For purposes of this Agreement,
the terms "Disabled" and "Disability" shall mean the Executive's
inability, because of physical or mental illness or injury, to perform
his customary duties pursuant to this Agreement, with or without
reasonable accommodation, and the continuation of such disabled
condition for a period of one hundred eighty (180) continuous days as
determined by an approved medical doctor. For purposes hereof, an
approved medical doctor shall mean a doctor selected by the Company
and the Executive. If the Company and the Executive cannot agree on a
medical doctor, each shall select a medical doctor and the two doctors
shall select a third who shall be the approved medical doctor for this
purpose.
5.2 Termination Due to Death or Disability. If the Executive dies or
becomes Disabled while employed hereunder and prior to a Change of
Control (as defined in Section 8.1.1) or a Corporate Transaction (as
defined in Section 8.1.2), this Agreement and the Executive's
employment shall automatically cease and terminate as of the date of
the Executive's death or the date of Disability (which date shall be
determined under Section 5.1 above, and referred to as the "Disability
Date"), as the case may be. In the event of the termination of the
Executive's employment due to his death or Disability, the Executive
(or, in the event of his death, his estate) shall be entitled to
receive:
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(i) a lump sum cash payment, payable within ten (10) business days
after the date of death or the Disability Date equal to the sum
of (A) any accrued but unpaid Base Salary as of the date of death
or the Disability Date, (B) any earned but unpaid portions of
Annual Bonuses in respect of fiscal years completed prior to the
date of death or the Disability Date, (C) any compensation
deferred under the provisions of any deferred compensation plan
and (D) any unreimbursed business expenses due under Section
4.2.1 of this Agreement;
(ii) a monthly payment payable in each of the twelve (12) months
following the date of the Executive's death or Disability Date in
an amount equal to one-twelfth (1 /12th) of the Executive's
annual Base Salary in effect immediately prior to his death or
Disability Date;
(iii) in the event that the Executive is not entitled to the benefits
provided by Section 4.4 and solely in the event of the
tetniination of the Executive's employment due to his Disability,
if the Executive elects to continue his medical coverage under
COBRA, reimbursement by the Company of such COBRA costs for a
period of up to eighteen (18) months following the termination of
his employment; provided, however, that the Company's obligation
under this Section 5.2(iii) shall be reduced to the extent that
comparable medical coverage is provided by a subsequent employer;
(iv) partial acceleration of the vesting of a portion of the
Executive's stock options and other equity awards, and extension
of time to exercise any vested stock options, as provided in
Section 3.3.2; and
(v) such employee benefits described in Section 4.1 as the Executive
or his estate may be entitled to hereunder or under the employee
benefit plans, programs and arrangements of the Company and, if
applicable, the retiree health coverage described in Section 4.4.
6. Termination by the Company.
6.1 Termination For Cause.
6.1.1 Definition of Termination with Cause. A termination of the
Executive's employment by the Company for cause ("Cause") shall
mean the termination of the Executive's employment by the Board
for any of the reasons listed below, except in the case of the
reason set forth in (i) below, only after written notice by the
Board stating the reason for the proposed termination for Cause
and the Executive's failure to cure within ninety (90) days of
receipt of such notice:
(i) the Executive's repeated failure to perform any essential duty of
his position other than due to Disability or such illness or
injury as described in and determined under Section 5.1 that
would result in Disability if it continued for the period of time
prescribed in Section 5.1;
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(ii) the Executive's commitment of an act that constitutes gross
misconduct and is injurious to the Company, any subsidiary of the
Company or any successor to the Company;
(iii) the Executive's conviction of or pleading guilty or nolo
contendere to any felony involving theft, embezzlement,
dishonesty or moral turpitude;
(iv) the Executive's commission of an act of fraud against, or the
misappropriation of property belonging to, the Company, any
subsidiary of the Company or any successor to the Company;
(v) the Executive's commitment of an act of dishonesty in connection
with his responsibilities as an employee that is intended to
result in his personal enrichment or the personal enrichment of
his family or others; or
(vi) the Executive's material breach of this Agreement or other
agreement between the Executive and the Company or any subsidiary
of or successor to the Company.
6.1.2 Entitlements Upon a Termination for Cause. If the Executive's
employment is terminated for Cause, the termination shall be
effective on the date the Company gives the Executive written
notice of termination, except in the case of a termination for
the reason described in Section 6.1.1(i), in which case the
termination shall be effective on the last day of the ninety-day
cure period. In the event of the termination of the Executive's
employment hereunder due to a tell 7ination by the Company for
Cause prior to a Change of Control (as defined in Section 8.1.1)
or a Corporate Transaction (as defined in Section 8.1.2), then
the Executive shall be entitled to receive:
(i) a lump sum cash payment, payable within ten (10) business days
after the date of telinination of the Executive's employment,
equal to the sum of (A) any accrued but unpaid Base Salary as of
the date of such termination, (B) any earned and vested but
unpaid portions of Annual Bonuses in respect of fiscal years
completed prior to the date of such termination, (C) any
compensation deferred under the provisions of any deferred
compensation plan, (D) any unreimbursed business expenses that
are due under Section 4.2.1 of this Agreement and (E) any unpaid
vacation.
(ii) such employee benefits described in Section 4.1 as the Executive
or his estate may be entitled to hereunder or under the employee
benefit plans, programs and arrangements of the Company and, if
applicable, the retiree health coverage described in Section 4.4.
6.2 Termination Without Cause. If the Executive's employment is
terminated by the Company without Cause, the termination shall be
effective on the thirtieth (30th) day following written notice of
such termination to the Executive. In the event of such
termination without Cause prior to a Change of Control (as
defined in Section 8.1.1) or a Corporate Transaction (as defined
in Section 8.1.2), then, subject to the Executive's execution of
a release and non-disparagement agreement in a form acceptable to
the Company, the Executive shall be entitled to:
(i) a lump sum cash payment, payable within ten (10) business days
after the date of termination of the Executive's employment,
equal to the sum of (A) any accrued but unpaid Base Salary as of
the date of such termination, (B) any earned and vested but
unpaid portions of Annual Bonuses in respect of fiscal years
completed prior to the date of such tennination, (C) any
compensation deferred under the provisions of any deferred
compensation plan, (D) any unreimbursed business expenses that
are due under Section 4.2.1 of this Agreement and (E) any unpaid
vacation.
(ii) a monthly severance payment payable in each of the twelve (12)
months following the date of termination of the Executive's
employment in an amount equal to one-twelfth (1/12th) of the
Executive's annual Base Salary in effect immediately prior to
such teunination;
(iii) in the event that the Executive is not entitled to the benefits
provided by Section 4.4 and if the Executive elects to continue
his medical coverage under COBRA, reimbursement by the Company of
such COBRA costs for a period of up to eighteen (18) months
following the termination of his employment; provided, however,
that the Company's obligation under this Section 6.2(iii) shall
be reduced to the extent that comparable medical coverage is
provided by a subsequent employer;
(iv) partial acceleration of the vesting of a portion of the
Executive's outstanding stock options and other equity awards.
and extension of time to exercise any vested stock options, as
provided in Section 3.3.2; and
(v) such employee benefits described in Section 4.1 as the Executive
or his estate may be entitled to hereunder or under the employee
benefit plans, programs and arrangements of the Company and, if
applicable, the retiree health coverage described in Section 4.4.
7. Termination by the Executive.
7.1 Termination Without Good Reason. If the Executive voluntarily
terminates his employment with the Company without Good Reason, the
termination shall be effective at the end of the thirty-day notice
period. Upon such termination of employment without Good Reason prior
to a Change of Control (as defined in Section 8.1.1) or a Corporate
Transaction (as defined in Section 8.1.2), the Executive shall have
the same entitlements as provided in Section 6.1.2 in the case of a
termination by the Company for Cause.
7.2 Termination With Good Reason.
7.2.1 Definition of Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence of any of the following events
without the Executive's written consent:
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(i) any reduction in the aggregate level of the Executive's Base
Salary except a reduction that is part of a program applicable to
all of the Company's officers to reduce expenses;
(ii) the failure by the Company or any subsidiary of or successor to
the Company to comply with any material terms of this Agreement
or any other material agreement between the Executive and the
Company or any subsidiary of or successor to the Company;
(iii) any material reduction in the nature or scope of the Executive's
duties, title, function, authority or responsibilities; or
(iv) a requirement that the Executive relocate his principal office to
a location that is more than sixty (60) miles from the location
of his principal office on January 1, 2004;
provided, however, that none of the events specified above shall
constitute Good Reason unless the Executive shall have notified
the Company in writing describing the events which constitute
Good Reason and the Company shall have failed to cure such event
within thirty (30) days after the Company's receipt of such
written notice.
7.2.2 Entitlements Upon a Termination with Good Reason. If the
Executive terminates his employment with Good Reason, the
termination shall be effective at the end of the thirty-day cure
period. Upon such termination of his employment with Good Reason
in accordance with Section 7.2.1 hereof prior to Change of
Control (as defined in Section 8.1.1) or a Corporate Transaction
(as defined in Section 8.1.2), the Executive shall, subject to
the Executive's execution of a release and non-disparagement
agreement in a form acceptable to the Company, have the same
entitlements as provided under Section 6.2 for a termination by
the Company without Cause.
8. Change of Control Provisions.
8.1 Definitions.
8.1.1 Definition of Change of Control. For purposes of this Agreement,
"Change of Control" shall mean either of the following events:
(i) any person or related group of persons (other than the Company or
a person that directly or indirectly controls, is controlled by,
or is under common control with, the Company) directly or
indirectly acquires beneficial ownership (within the meaning of
Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of
securities possessing more than fifty percent (50%) of the total
combined voting power of the Company's outstanding securities
pursuant to a tender or exchange offer made directly to the
Company's stockholders; or
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(ii) there is a change in the composition of the Board over a period
of thirty-six (36) consecutive months or less such that a
majority of the Board members ceases, by reason of one or more
proxy contests for the election of Board members to be comprised
of individuals who either (A) have been Board members
continuously since the beginning of such period or (B) have been
elected or nominated for election as Board members during such
period by at least a majority of the Board members described in
clause (A) who were still in office at the time such election or
nomination was approved by the Board.
8.1.2 Definition of Corporate Transaction. For purposes of this
Agreement, "Corporate Transaction" shall mean any of the
following stockholder approved transactions to which the Company
is a party:
(i) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose
of which is to change the state in which the Company is
incorporated,
(ii) the sale, transfer or other disposition of all or substantially
all of the assets of the Company in complete liquidation or
dissolution of the Company, or
(iii) any reverse merger in which the Company is the surviving entity
but in which securities possessing more than fifty percent (50%)
of the total combined voting power of the Company's outstanding
securities are transferred to person or persons different from
the persons holding those securities immediately prior to such
merger.
8.2 Effect of Change of Control or Corporate Transaction. In the event of
a Change of Control or a Corporate Transaction, the Executive's stock
options and equity awards shall automatically vest in full, and the
time to exercise his vested stock options shall be extended, to the
extent provided in Section 3.3.2. Upon the Executive's tennination of
employment for any reason following a Change of Control, then, subject
to the Executive's execution of a release and non-disparagement
agreement in a form acceptable to the Company, the Executive shall be
entitled to the following in lieu of, and not in addition to, the
entitlements described in Sections 6.2 and 7.2.2:
(i) a lump sum cash payment, payable within ten (10) days after the
date of the termination of the Executive's employment equal to
the sum of (A) any accrued but unpaid Base Salary as of the date
of such termination, (B) any earned but unpaid portions of Annual
Bonuses in respect of fiscal years completed prior to the date of
the termination of the Executive's employment, (C) any
compensation deferred under any deferred compensation plan and
(D) any unreimbursed business expenses due under Section 4.2.1 of
this Agreement;
(ii) a monthly payment in each of the twenty four (24) months
following the date of the termination of the Executive's
employment in an amount equal to one-twelfth (1112`') of the
Executive's annual Base Salary in effect immediately prior to
such termination (or, if greater, his annual Base Salary in
effect immediately prior to the Change of Control or Corporate
Transaction); and
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(iii) such employee benefits described in Section 4.1 as the Executive
or his estate may be entitled to hereunder or under the employee
benefit plans, programs and arrangements of the Company and the
retiree health coverage described in Section 4.4.
8.3 Option to Refuse Payments. The Executive shall be entitled to refuse
all or any portion of any payments or benefits under this Agreement if
the Executive determines that receipt of such payment or benefit may
result in adverse tax consequences to him under Section 4999 of the
Code or otherwise. The Company shall be totally and permanently
relieved of any obligation to pay any amounts or to provide any
benefits that the Executive specifically so refuses in writing.
9. Non-Competition.
The Executive acknowledges and recognizes the highly competitive nature of
the businesses of the Company, the amount of sensitive and confidential
information involved in the discharge of the Executive's position with the
Company, and the harm to the Company that would result if such knowledge or
expertise was disclosed or made available to a competitor, and accordingly
agrees that during the period that he is receiving any payments under this
Agreement, he shall not, directly or indirectly in any manner or capacity
(e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage in,
work for, consult, provide advice or assistance or otherwise participate in
any activity that is competitive with the business of the Company. The
Executive further agrees that during such period he will not assist or
encourage any other person in carrying out any activity that would be
prohibited by the foregoing provisions of this Section if such activity
were carried out by the Executive and, in particular. the Executive agrees
that he will not induce any employee of the Company to carry out any such
activity; provided. however, that the "beneficial ownership" by the
Executive, either individually or as a member of a "group," as such terms
are used in Rule 13d of the General Rules and Regulations under the
Exchange Act, of not more than one percent (1 %) of the voting stock of any
publicly held corporation shall not be a violation of this Agreement. It is
further expressly agreed that the Company will or would suffer irreparable
injury if the Executive were to compete with the Company or any subsidiary
or affiliate of the Company in violation of this Agreement and that the
Company would by reason of such competition be entitled to injunctive
relief in a court of appropriate jurisdiction, and the Executive further
consents and stipulates to the entry of such injunctive relief in such a
court prohibiting the Executive from competing with the Company or any
subsidiary or affiliate of the Company in violation of this Agreement. In
the event that the Executive breaches the provisions of this Section 9, the
severance benefits under Sections 6.2, 7.2.2 or 8.2, whichever is
applicable, shall immediately terminate, the Executive shall cease to be
entitled to any additional payments under this Agreement, and all stock
options shall cease to be exercisable.
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10. Confidentiality and Treatment of Inventions.
10.1 Confidentiality. The Executive will not at any time (whether during or
after his employment with the Company), other than in the course of
his duties hereunder or unless compelled by lawful process, disclose
or use for his own benefit or purposes or the benefit or purposes of
any other person, firm. partnership, joint venture, association,
corporation or other business organization, entity or enterprise other
than an entity within the Company or a subsidiary or affiliate of the
Company, any trade secrets, or other confidential data or information
relating to customers, development programs, costs, marketing.
trading, investment, sales activities, promotion, credit and financial
data, financing methods, or plans of any entity within the Company or
any subsidiary or affiliate of the Company; provided that the
foregoing shall not apply to information that is generally known to
the industry or the public other than as a result of the Executive's
breach of this covenant. The Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the
Company immediately all memoranda, books, papers, software, plans,
information, letters and other data, and all copies thereof or
therefrom, in any way relating to the business of any entity within
the Company or any subsidiary or affiliate of the Company, except that
he may retain personal notes, notebooks and diaries that do not
contain confidential information of the type described in the
preceding sentence. The Executive further agrees that he will not
retain or use for his account at any time any trade names, trademark
or other proprietary business designation used or owned in connection
with the business of any entity within the Company of any subsidiary
or affiliate of the Company.
10.2 Treatment of Inventions.
10.2.1 Prior Inventions. The Executive understands and acknowledges
that he does not have any right or claim to any invention, idea,
process, foiinula, discovery, technical information, trade
secret, design, computer program, proprietary information,
copyright, patent or other such item or matter (together, any
"Invention"), including without limitation any Invention made
prior to his employment with the Company. The Executive further
understands and acknowledges that he has had the opportunity to
disclose any Invention to the Company, and has voluntarily and
knowingly waived and declined such opportunity because he has no
Invention to disclose.
10.2.2 Subsequent Invention Disclosure. The Executive hereby agrees to
disclose to the Company in a prompt manner any Invention that he
develops at any time prior to the six-month anniversary of his
termination of employment with the Company.
10.2.3 Assignment of Inventions. Except as otherwise provided by
Section 10.2.4, the Executive hereby assigns and agrees to assign
to the Company or its designee the Executive's entire right,
title, and interest in and to any Invention that the Executive,
whether solely or jointly, develops prior to the six-month
anniversary of his termination of employment with the Company,
with the use of time, material, equipment, supplies, facilities
or trade secret information of the Company or any subsidiary or
affiliate of the Company, whether or not during working hours.
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The Executive further agrees to cooperate with the Company and to
perform all acts deemed necessary or desirable by the Company to
permit and to assist the Company, at the Company's expense, in
obtaining and enforcing the full benefits, enjoyment, rights and
title (whether domestic or foreign) to any Invention hereby
assigned by the Executive to the Company.
10.2.4 Inventions not Assigned. Section 10.2.3 shall not apply to an
Invention that the Executive developed entirely on his own time
without using the Company's or any of its subsidiaries' or
affiliates' time, material, equipment, supplies, facilities or
trade secret information, except for any Invention that either
(i) relates at the time of conception or reduction to practice of
the Invention to the Company's or a subsidiary's or affiliate's
business, or actual or demonstrably anticipated research
development of the Company or a subsidiary or affiliate of the
Company or (ii) results from the Executive's work with the
Company or a subsidiary or affiliate of the Company, whether or
not during normal working hours.
11. Antisolicitation.
The Executive promises and agrees that, for a period of twelve (12) months
following his termination of employment, he will not influence or attempt
to influence suppliers or customers of the Company hereunder, either
directly or indirectly, to divert their business away from the Company to
any individual, partnership, firm, corporation or other entity then in
competition with the Company or any subsidiary of successor to the Company.
12. Soliciting Employees.
The Executive promises and agrees that, for a period of twelve (12) months
following termination of his employment hereunder, he will not directly or
indirectly solicit any person who is then, or at any time within six months
prior thereto was, an employee of the Company to leave the employ of the
Company to work for any business, individual, partnership, firm,
corporation, or other entity then in competition with the business of the
Company or any subsidiary of or successor to the Company.
13. Cooperation in Litigation.
The Executive agrees that he will reasonably cooperate with the Company in
any litigation that arises out of events occurring prior to the termination
of his employment, including but not limited to, serving as a witness or
consultant and producing documents and information relevant to the case or
helpful to the Company. The Company agrees to reimburse the Executive for
all reasonable costs and expenses he incurs in connection with his
obligations under this Section 13.
14. Indemnification.
Indemnification shall be provided to the Executive as set forth in the
indemnification agreement entered into between the Company and the
Executive on June 1, 1999 and/or any subsequent indemnification agreement
between the Company and the Executive (the "Indemnification Agreement").
15. Assignment.
This Agreement is personal in its nature and neither of the parties hereto
shall, without the consent of the other, assign or transfer this Agreement
or any rights or obligations hereunder; provided, however, that, in the
event of a merger, consolidation, or transfer or sale of all or
substantially all of the assets of the Company with or to any other
individual(s) or entity, this Agreement shall, subject to the provisions
hereof, be binding upon and inure to the benefit of such successor and such
successor shall discharge and perfonn all the promises, covenants, duties,
and obligations of the Company hereunder, and; provided, further, that the
Executive may assign his rights to compensation and benefits by will or by
operation of law or pursuant to Section 27.
16. Governing Law.
This Agreement and the legal relations hereby created between the parties
hereto shall be governed by and construed under and in accordance with the
internal laws of the State of California, without regard to conflicts of
laws principles thereof except as provided in Section 14.
17. Entire Agreement.
This Agreement and the Indemnification Agreement represent the entire
agreement of the parties hereto respecting the matters within the scope of
this Agreement and the Indemnification Agreement and supersede the Prior
Agreement and any and all prior agreements of the parties hereto on the
subject matter hereof Any prior negotiations, correspondence, other
agreements, proposals or understandings relating to the subject matter
hereof shall he deemed to be merged into this Agreement and to the extent
inconsistent herewith, such negotiations, correspondence, agreements,
proposals, or understandings shall be deemed to be of no force or effect.
There are no representations, warranties, or agreements, whether express or
implied, or oral or written, with respect to the subject matter hereof,
except as set forth herein.
18. Modifications.
This Agreement shall not be modified by any oral agreement, either express
or implied, and all modifications hereof shall be in writing and signed by
the parties hereto.
19. Waiver.
Failure to insist upon strict compliance with any of the terms, covenants,
or conditions hereof shall not be deemed a waiver of such term, covenant,
or condition, nor shall any waiver or relinquishment of, or failure to
insist upon strict compliance with, any right or power hereunder at any one
or more times be deemed a waiver or relinquishment of such right or power
at any other time or times.
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20. Number and Gender.
Where the context requires, the singular shall include the plural, the
plural shall include the singular, and any gender shall include all other
genders.
21. Section Headings.
The section headings in this Agreement are for the purpose of convenience
only and shall not limit or otherwise affect any of the terms hereof.
22. Resolution of Disputes.
Any controversy or claim arising out of or relating to the Executive's
employment, this Agreement, its enforcement, arbitrability, or
interpretation, or because of an alleged breach, default, or
misrepresentation in connection with any of its provisions, shall be
submitted to arbitration in Santa Xxxxx County, California, before a single
arbitrator, in accordance with the National Rules for the Resolution of
Employment Disputes then in effect of the American Arbitration Association
("AAA") as modified by the terms and conditions of this Section 22;
provided, however, that provisional injunctive relief may, but need not, be
sought in a court of law while arbitration proceedings are pending, and any
provisional injunctive relief granted by such court shall remain effective
until the matter is finally determined by the arbitrator. The arbitrator
shall be selected by mutual agreement of the parties or, if the parties
cannot agree, by striking from a list of arbitrators supplied by AAA. The
arbitrator shall issue a written opinion revealing, however briefly, the
essential findings and conclusions upon which the award is based. Final
resolution of any dispute through arbitration may include any remedy or
relief which the arbitrator deems just and equitable. Any award or relief
granted by the arbitrator hereunder shall be final and binding on the
parties hereto and may be enforced by any court of competent jurisdiction.
The parties acknowledge that they are hereby waiving any rights to trial by
jury in any action, proceeding or counterclaim brought by either of the
parties against the other in connection with any matter whatsoever arising
out of or in any way connected with this Agreement or the Executive's
employment.
The Company shall pay the arbitrator's fees and arbitration expenses and
any other costs associated with the arbitration or arbitration hearing that
are unique to arbitration. The Company and the Executive each shall
separately pay its or his own deposition, witness, expert and attorneys'
fees and other expenses as and to the same extent as if the matter were
being held in court unless otherwise provided by law; provided, however,
that if the Executive prevails, the arbitrator may award the Executive
reasonable attorneys' fees. The arbitrator shall resolve any dispute as to
reasonableness of any fee or cost. The arbitrator shall have the sole and
exclusive power and authority to decide any and all issues of or related to
arbitrability.
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23. Severability.
In the event that a court of competent jurisdiction determines that any
portion of this Agreement is in violation of any statute or public policy,
then only the portions of this Agreement which violate such statute or
public policy shall be stricken, and all portions of this Agreement which
do not violate any statute or public policy shall continue in full force
and effect. Furthermore, any court order striking any portion of this
Agreement shall modify the stricken terms as narrowly as possible to give
as much effect as possible to the intentions of the parties under this
Agreement.
24. Notices.
All notices under this Agreement shall be in writing and shall be either
personally delivered or mailed postage prepaid, by certified mail, return
receipt requested:
(i) if to the Company:
Ultratech, Inc.
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Chair, Compensation Committee of the Board of Directors
(ii) if to the Executive:
Xxxxx X. Xxxxxx
00 Xxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Either party may change its address set forth above by written notice given
to the other party in accordance with the foregoing. Any notice shall be
effective when personally delivered, or five (5) business days after being
mailed in accordance with the foregoing.
25. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which together shall constitute one
and the same instrument.
26. Withholding Taxes.
The Company may withhold from any amounts payable under this Agreement such
federal, state and local income, employment, or other taxes as may be
required to be withheld pursuant to any applicable law or regulation.
27. Beneficiaries.
The Executive shall be entitled, to the extent permitted under any
applicable law and to the extent permitted under any benefit plan or
program maintained by the Company, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit hereunder following
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the Executive's death by giving the Company written notice thereof in
accordance with the terms of such plan or program. In the event of the
Executive's death or a judicial determination of his incompetence,
reference in this Agreement to the Executive shall be deemed, where
appropriate, to refer to his beneficiary, estate or other legal
representative.
28. Director's and Officer's Insurance.
The Company shall provide director's and officer's insurance coverage for
the Executive to the extent the Company provides such coverage for its
other senior executive officers.
29. No Mitigation or Offset.
In the event of any termination of employment under this Agreement, the
Executive shall be under no obligation to seek other employment and there
shall be no offset against amounts due the Executive under this Agreement
on account of any remuneration attributable to any subsequent employment
that he may obtain except (i) as specifically provided in Sections
5.2(iii), 6.2(iii) and 8.2(iii) of this Agreement, or (ii) on account of
any claims the Company may have against the Executive.
30. Right to Advice of Counsel
The Executive acknowledges that he has had the right to consult with
counsel and is fully aware of his rights and obligations under this
Agreement. O'Melveny & Xxxxx, LLP has served as the Company's counsel with
respect to this Agreement.
31. Section 409Ab
It is not the intent of the parties that the amendments accomplished by
this amended and restated agreement will make this agreement in compliance
with Section 409A of the Code at this time, however, the parties shall,
prior to December 31, 2006 or any extended compliance date, amend this
agreement in such a way as the parties in good faith determine is necessary
to ensure compliance with Section 409A. The Company reserves the right to
amend this Agreement in any way that the Company in good faith determines
may be advisable to help ensure compliance with Section 409A of the
Internal Revenue Code and any regulations or other guidance thereunder
(together, "Section 409A"). Any such amendment shall preserve, to the
extent reasonably possible and in a manner intended to satisfy Section
409A, the original intent of the parties and the level of benefits
hereunder. Without limiting the generality of the foregoing, the Company
may suspend (without interest) the payment of any compensation or benefits
pursuant to this Agreement to the extent that the Company in good faith
determines that the Executive is a "specified individual" (as such term is
used in Section 409A) and the suspension of benefits is advisable to avoid
the imputation of penalties or taxes under Section 409A.
32. Survival.
Upon the termination of this Agreement, the provisions of Sections 4.4, 5,
6, 7, 8, 9, 10, 11, 12. 13, 14, 16, 22, 23, 24, 26, 28 and 29 shall
survive.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Employment Agreement as of the date first above written.
THE COMPANY
Ultratech, Inc.,
a Delaware corporation
By: /s/ Art Zafiropoulo
------------------------------------
Art Zafiropoulo
Chief Executive Officer
THE EXECUTIVE
/s/ Xxxxx X. Xxxxxx
--------------------
Xxxxx X. Xxxxxx
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