Exhibit 10.2
SEPARATION AND GENERAL RELEASE AGREEMENT
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This Separation and General Release Agreement (this "Agreement") is
entered into by and between Xxxx Xxxxxxxx ("Executive") and Ultratech, Inc., a
Delaware corporation (the "Company") on January 14, 2007.
WITNESSETH:
WHEREAS, the Executive is currently employed by the Company pursuant
to an Employment Agreement, dated February 3, 2006, as amended as of January 14,
2007 (the "Employment Agreement"); and
WHEREAS, Executive has resigned, effective December 14, 2006, from his
position as Vice President, World-wide Sales and Customer Service, and,
effective January 14, 2007, from employment with the Company;
WHEREAS, the Company and Executive agree that, subject to Executive
entering into this Agreement, Executive shall be entitled to receive the
severance benefits provided for under Section 6.2 of the Employment Agreement;
WHEREAS, any capitalized terms that are not defined herein shall have
the meaning set forth in the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and the Executive agree as follows:
1. Effective Date: This Agreement shall become effective on the eighth day
after Executive delivers to the Company a fully-executed version of this
Agreement without modification or revocation (the "Effective Date").
2. Resignation from Employment: The parties have agreed that Executive has
resigned from employment with the Company and any of its subsidiaries or
affiliates, effective January 14, 2007 (the "Resignation Date"). Executive
further acknowledges that, as of December 14, 2006, Executive was no longer
the Company's Senior Vice President, World-wide Sales and Customer Service,
and was no longer an executive officer of the Company, and that as of
January 14, 2007, Executive shall no longer be an employee of the Company.
3. No Right of Reinstatement: Executive will have no right to reinstatement
with the Company or any of its subsidiaries.
4. Exclusive Severance Benefits: Except for the severance benefits to which
Executive is entitled to receive pursuant to the express terms of Section
6.2 of the Employment Agreement (the "Severance Benefits"), Executive
acknowledges that he will not receive, and is not entitled to receive, any
additional compensation, severance, vesting, equity, or other benefits from
the Company or any of its subsidiaries or affiliates after the Resignation
Date. Executive further acknowledges that he has been paid for all wages,
salary, and other compensation earned during his employment through the
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Resignation Date, except for the following: (a) Executive's base salary for
the period of December 16 through the Resignation Date, which shall be paid
on January 12, 2006; (b) payment for Executive's accrued but unused
vacation as of the Resignation Date (which, as of January 14, 2006, will
amount to 4.62 days of vacation), which shall be paid on January 12, 2007;
and (c) payment of Executive's unpaid business expenses, which shall be
submitted to the Company no later than the Resignation Date and which shall
be reimbursed by the Company in accordance with its standard expense
reimbursement policy.
5. No Admission of Liability Or Wrongdoing: This Agreement does not constitute
an admission by the Company or Executive of any violation of federal, state
or local law, ordinance or regulation or of any violation of the Company's
policies or procedures or of any liability or wrongdoing whatsoever.
Neither this Agreement nor anything in this Agreement shall be construed to
be or shall be admissible in any proceeding as evidence of liability or
wrongdoing by the Company or Executive. This Agreement may be introduced,
however, in any proceeding to enforce the Agreement. Such introduction
shall be pursuant to an order protecting its confidentiality to the extent
permitted by law.
6. Releases: Except for those obligations created by or arising out of this
Agreement, the Employment Agreement, the stock option agreements governing
Executive's stock option grants listed below (the "Stock Option
Agreements"), the RSU Agreement (as defined below), any indemnification
agreement between the Company and Executive (the "Indemnification
Agreement"), and any proprietary information and inventions agreement
and/or confidentiality agreement between the Company and Executive
(collectively, the "Confidentiality Agreement"), Executive, on his own
behalf and on behalf of his descendants, dependents, heirs, executors,
administrators, assigns and successors, and each of them, hereby covenants
not to xxx and fully releases and discharges the Company and each of its
and their subsidiaries, parent, or affiliated partnerships and
corporations, past and present, as well as each of its and their directors,
officers, trustees, shareholders, members, partners, representatives,
attorneys, assignees, successors, agents and employees, past and present,
and each of them (individually and collectively, "Company Releasees"), from
and with respect to any and all claims, wages, agreements, obligations,
demands and causes of action, known or unknown, suspected or unsuspected
(collectively, "Claims"), arising out of or in any way connected with
Executive's employment and termination of employment with the Company,
Executive's consulting relationship with the Company prior to such
employment, if any, or any other relationship with, interest in or
termination of relationship with any Company Releasees, including without
limiting the generality of the foregoing, any claim for wages, overtime,
salary, severance pay, compensation, commissions, bonus or similar benefit,
car allowance, sick leave, pension, retirement, vacation pay, paid time
off, life insurance, health or medical insurance, or any other fringe
benefit, or disability, or any Claim pursuant to any federal, state or
local law, statute or cause of action including, but not limited to: the
federal Civil Rights Act of 1964, as amended; the federal Americans with
Disabilities Act of 1990; the federal Age Discrimination in Employment Act
of 1967, as amended (the "ADEA"); the California Fair Employment and
Housing Act, as amended; the California Family Rights Act; the California
Labor Code; the Xxxxxxxx-Xxxxx Act; tort law; contract law; wrongful
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discharge; discrimination; retaliation; harassment; fraud; defamation;
emotional distress; breach of the implied covenant of good faith and fair
dealing; or breach of any contract. Notwithstanding any provision of this
Section 6, the foregoing release shall not apply to any right you may
otherwise have to (i) vested benefits, if any, under the Company's 401(k)
plan and deferred compensation plans, in accordance with the terms of those
plans, life insurance conversion rights, unemployment compensation,
workers' compensation or disability insurance, or to (ii) indemnification
by the Company pursuant to the Company's certificate of incorporation,
by-laws, insurance policies, Section 14 of the Employment Agreement, and/or
applicable law.
7. Section 1542 Waiver: In executing this Agreement, and except as expressly
stated in this Agreement, Executive intends for it to be effective as a
general release to each and every claim, demand and cause of action
hereinabove specified. In furtherance of this intention, Executive hereby
expressly waives any rights and benefits conferred by SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, and expressly consents that this Agreement shall be
given full force and effect according to each and all of its express terms
and provisions, including those related to unknown and unsuspected claims,
demands and causes of action, if any, as well as those relating to any
other claims, demands and causes of action hereinabove specified. SECTION
1542 provides:
"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."
Executive acknowledges that he may hereafter discover claims or facts in
addition to or different from those which they now know or believe to exist
against Company Releasees with respect to the subject matter of this Agreement
and which, if known or suspected at the time of executing this Agreement, may
have materially affected this settlement. Nevertheless, Executive waives any
right, claim or cause of action that might arise as a result of such different
or additional claims or facts. Executive acknowledges that he understands the
significance and consequence of such release and such specific waiver of SECTION
1542.
8. Waiver Of Age Discrimination Claims: Executive expressly acknowledges and
agrees that, by entering into this Agreement, he is waiving any and all
rights or claims that he may have arising under the Age Discrimination in
Employment Act of 1967, as amended, which have arisen on or before the date
of execution of this Agreement. Executive also expressly acknowledges and
agrees that:
a. In return for this Agreement, Executive will receive consideration,
i.e., something of value, beyond that to which he was already entitled
before entering into this Agreement;
b. Executive is hereby advised in writing by this Agreement to consult
with an attorney before signing this Agreement, and has done so;
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c. Executive is hereby informed that he has 21 days within which to
consider whether to sign and accept the terms of this Agreement and
that if he wishes to execute this Agreement prior to the expiration of
such 21-day period, he will execute the Acknowledgment and Waiver
attached hereto as Exhibit B;
d. Nothing in this Agreement prevents or precludes Executive from
challenging or seeking a determination in good faith of the validity
of this waiver under the ADEA, nor does it impose any condition
precedent, penalties or costs from doing so, unless specifically
authorized by federal law; and
e. Executive is hereby informed that he has seven (7) days following the
date he executes the Agreement in which to revoke it, and this
Agreement will become null and void if Executive elects revocation
during that time. To be valid and effective, any revocation must be in
writing and must be received by the Company during the seven-day
revocation period. In the event that Executive validly exercises his
right of revocation, neither the Company nor Executive will have any
obligations under this Agreement.
9. Continuing Obligations to the Company. Executive acknowledges that he has
continuing obligations to the Company that survive the termination of his
employment under Sections 9-14 of the Employment Agreement (the "Continuing
Obligations"). Executive further acknowledges that compliance with the
Continuing Obligations is a material condition to Executive receiving the
Severance Benefits and that any breach of any of the Continuing Obligations
shall be a material breach of this Agreement and shall result in the
Company ceasing payment of the Severance Benefits.
10. Return of Company Property and Proprietary Information: Executive
acknowledges that, by no later than the Resignation Date, he shall return
to the Company all Company Property and Confidential Information that are
in his possession, custody or control unless directed otherwise by the
Company. For purposes of this Agreement, the term "Company Property" shall
mean all personal computers, laptop computers, cellular telephones,
security cards, keys, diskettes, pda's, and other equipment or property
owned by the Company that was provided to Executive during his employment.
For purposes of this Agreement, the term "Confidential Information" shall
have the same meaning as used in Section 10 of the Employment Agreement.
Executive further agrees to make a diligent search for any Company Property
and Company documents in his possession or control prior to the Effective
Date. In addition, (i) Executive will complete any forms necessary,
including those of any banking institution, to remove his name from any
list of Company authorized signatories, and (ii) Executive shall otherwise
assist the Company in taking all actions required to confirm that all
Company property has been returned and that full ownership of all Company
property is vested solely in the Company.
11. Equity: The parties agree that Executive currently holds options to
purchase 275,000 shares of the Company's Common Stock (the "Options"), all
of which are vested.
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Accordingly, upon the Resignation Date, Executive shall have the right to
purchase a total of 275,000 vested shares of the Company's Common Stock in
accordance with the terms of the applicable Stock Option Agreement for each of
Executive's Options.
In addition, Executive holds an award of restricted stock units covering 5,000
shares of the Company's Common Stock which was made to him on January 31, 2006
pursuant to a Restricted Stock Unit Issuance Agreement (the "RSU Agreement") of
that same date between Executive and the Company. Currently, 1,666 of the 5,000
shares underlying those restricted stock units are vested. Subject to this
Agreement becoming effective, on the Resignation Date, Executive shall vest in
an additional 25% of the underlying shares so that 1,250 additional vested
shares of Common Stock will become issuable to him on [July 15, 20071 in
accordance with the deferred issuance provisions of Section 9 of the RSU
Agreement, subject to Company's collection of the applicable withholding taxes
pursuant to Section 8 of the RSU Agreement.
Except as set forth in this Section 11, Executive acknowledges and agrees that
he has no further right or benefits under any agreement to receive or acquire
any security or derivative security in or with respect to the Company or any
Releasee.
12. Non-Disparagement: Executive agrees that he shall not make any disparaging
remarks, or any remarks that could reasonably be construed as disparaging,
whether orally or in writing, regarding the Company or its subsidiaries or
affiliates or any of their respective officers, directors, trustees,
employees, partners, owners, or agents, in any manner that is intended to
be harmful to them or their business, products, business reputation or
personal reputation, including but not limited to statements to the media,
former and present employees, consultants or customers of the Company, or
existing or potential investors of the Company. Nothing in this Section 12
is intended to prohibit Executive from testifying or responding truthfully
in response to any court order, arbitral order, subpoena or government
investigation, provided that Executive: (i) provides written notice to the
Company within 72 hours of receiving any such order, subpoena or request
for information from any governmental agency and (ii) cooperates with the
Company to the extent the Company elects to object to such subpoena, court
order, or governmental investigation.
13. Warranty of No Other Actions: Executive hereby represents and warrants to
the Company that he has not filed any lawsuit or administrative action
against the Company or any other Company Releasee with any court, arbitral
forum or governmental agency.
14. Assignments: The parties warrant and represent that they have not assigned
or transferred to any person not a party to this Agreement any released
matter or any part or portion thereof and each party hereto shall defend,
indemnify and hold harmless the other from and against any claim (including
the payment of attorneys' fees and costs actually incurred whether or not
litigation is commenced) based on or in connection with or arising out of
any such assignment or transfer made, purported or claimed. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective heirs, successors and permitted assigns. The Company may assign
this Agreement, including any and all rights under this Agreement, without
notice in its sole discretion. This Agreement is personal to Executive and
may not be assigned, in whole or in part, by Executive.
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15. Waivers,: No waiver of any provision or consent to any exception to the
terms of this Agreement shall be effective unless in writing and signed by
the party to be bound and, then, only to the specific purpose, extent and
instance so provided.
16. Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts
made and performed in the State of California and without regard to
conflicts of laws doctrines.
17. Arbitration: Any controversy or claim arising out of or relating to this
Agreement, its enforcement, arbitrability or interpretation, or because of
an alleged breach, default, or misrepresentation in connection with any of
its provisions, or arising out of or relating in any way to Executive's
employment or association with the Company shall be resolved in accordance
with Section 22 of the Employment Agreement.
18. Authority. The Company represents and warrants that all corporate action on
the part of the Company necessary for the authorization, execution,
delivery and performance of this Agreement have been taken.
19. Severability: If any provision of this Agreement or its application is held
invalid, the invalidity shall not affect other provisions or applications
of the Agreement which can be given effect without the invalid provision or
application and, therefore, the provisions of this Agreement are declared
to be severable.
20. Entire Agreement: With the exception of the Stock Option Agreements, the
RSU Agreement, the Indemnification Agreement, the Confidentiality
Agreement, and the Employment Agreement, this instrument constitutes and
contains the entire agreement and understanding concerning Executive's
employment and the other matters addressed. Subject to the foregoing
sentence, the parties intend it as a complete and exclusive statement of
the terms of their agreement, and it supersedes and replaces all prior
negotiations and agreements, proposed or otherwise, whether written or
oral, between the parties concerning the subject matters. Except as
expressly set forth in this Section 20, this is a fully integrated
document. This Agreement may be modified only with a written instrument
executed by both parties.
21. Voluntary Counsel: Executive agrees and acknowledges that he has read and
understood this Agreement prior to signing it, has entered into this
Agreement freely and voluntarily and has received legal advice from counsel
of his own choosing prior to entering into this Agreement.
22. Notices: All notices, requests, claims, demands and other communications
hereunder shall be in writing and sufficient if delivered in person, by
telecopy or sent by mail (registered or certified mail, postage prepaid,
return receipt requested) or overnight courier (prepaid) to the Company or
to Executive, as applicable, as follows:
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To the Company:
Ultratech, Inc.
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Chair, Compensation Committee of the Board of Directors
w/ copies to
Attn: Xxxxxx Xxxxxxx
O'Melveny & Xxxxx LLP
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
To Executive:
Xxxx Xxxxxxxx
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.
23. Section Headings: Section and other headings contained in this Agreement
are for convenience of reference only and shall not affect in any way the
meaning of interpretation of this Agreement.
(REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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WITNESS WHEREOF, the parties have executed or caused to be
executed this Agreement as of the date first above written.
By: /s/Xxxx Xxxxxxxx Dated: January 12, 2007
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Xxxx Xxxxxxxx
ULTRATECH, INC.
By: /s/ Art Zafiropoulo Dated: January___, 2007
-------------------
Art Zafiropoulo
Chief Executive Officer
Ultratech, Inc.
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EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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Ultratech
Ultratech
EMPLOYEE TERMINATION DECLARATION
I certify that I have returned to Ultratech, including any of its subsidiaries,
business units, and divisions (hereinafter "Company") any and all documents
containing confidential information which relates to the "Company" business and
was made available to me during my employment.
I understand that, pursuant to Ultratech's "Employee Agreement Proprietary
Information and Inventions Agreement", my duties of nondisclosure and non-use of
any such confidential information survive termination of my employment.
EMPLOYEE NAME: Xxxx Xxxxxxxx
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EMPLOYEE'S SIGNATURE: /s/ Xxxx Xxxxxxxx
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DATE: January 12, 2007
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EXHIBIT B
ACKNOWLEDGMENT AND WAIVER
I, Xxxx Xxxxxxxx hereby acknowledge that I was given 21 days to consider
the foregoing Agreement and voluntarily chose to sign the Agreement prior to the
expiration of the 21-day period.
EXECUTED this 12 day of January 2007, at Santa Xxxxx County, California.
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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