Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This
Amended and Restated Employment Agreement (this "Agreement") is
entered into on November 2, 2006, by and between John E. Denzel
(the
"Executive") and Ultratech, Inc., a Delaware corporation (the
"Company"), and
shall be effective as of October 5, 2006.
W I T N E S S E T H:
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WHEREAS, the Executive is currently a party to an employment
agreement
with the Company dated November 24, 2003 (the "Prior
Agreement");
WHEREAS, the Executive has, effective as of October 5, 2006,
resigned
from his position as President and Chief Operating Officer of the
Company.
WHEREAS, both the Company and the Executive desire to continue
the
Executive's employment in a non-executive officer capacity for an
appropriate
transition period; and
WHEREAS, the Company and the Executive desire to amend and restate
the
terms and conditions of the Prior Agreement so as to set forth the
terms and
conditions which will govern his post-October 5, 2006 employment
with the
Company.
NOW,
THEREFORE, in consideration of the mutual promises and
covenants
contained herein, the Company and the Executive agree as
follows:
1.
Duties.
1.1 Change
in Status. By reason of his October 5, 2006 resignation, the
Executive shall no longer serve as President and Chief Operating
Officer
of
the Company. However, the Executive shall continue in a
non-executive
employee status with the Company through November 4, 2006 and
shall
report directly to the Company's Chief Executive Officer. During
such
period of employment, the Executive shall provide such assistance
and
service as the Company's Chief Executive Officer may request in
order to
assure an orderly and successful transition period. On November 4,
2006,
Executive's employment with the Company shall automatically
terminate and
Executive shall become entitled to the severance benefits in
accordance
with
the provisions of Section 6.2 of this Amended and Restated
Agreement.
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 Amended and Restated 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 terms 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
Amended and Restated Agreement and that the execution and
delivery
of
such Agreement to the Executive and the employment of the
Executive
hereunder shall not constitute a breach of, or otherwise
contravene, the
terms of any law, agreement or policy by which it is bound.
<PAGE>
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 prior to November 4, 2006 for any reason, with or without
Cause. The
Executive may terminate his employment with the Company at any time
prior to
November 4, 2006. 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
$276,000 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").
(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 45% of his
annual
Base Salary,
based upon the achievement of performance objectives
established by the Board or the compensation committee of the Board
(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 the prime rate
as
set
forth in The Wall Street Journal from time to time (the
"Deferral
Period"). During the Deferral Period, the unpaid portion of the
deferred
Annual Bonus, together with such accrued interest, may be subject
to
forfeiture if the Executive 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.
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<PAGE>
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 terms, 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.
3.3.2 Acceleration and
Extension. Notwithstanding Section 3.3.1, upon a
termination of the Executive's employment (i) pursuant to
Section
6.2 or (ii) on account of his death or Disability, then each of
the Executive's outstanding stock options or other equity
awards
which are not otherwise at that time vested 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). To the extent that the equity awards described in this
Section 3.3.2 are stock options which were granted to Executive
on
or after July 21, 2003 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) or (ii) of this Section
3.3.2 (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 option granted to
Executive prior to July 21, 2003 shall, to the extent each such
option has become vested by its terms or becomes vested as
described herein at the time of the Executive's termination of
employment under Section 6.2, remain exercisable until the
earlier
of (i) the last day of the post-employment exercise period set
forth in the stock option agreement applicable to that option
or
(ii) the expiration date of the maximum option term.
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.
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<PAGE>
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.
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.
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, 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:
(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) the portions
of any deferred Annual Bonuses in respect of fiscal years
completed prior to the date of death or the Disability Date
which vest and become payable on such date, (C) any
unreimbursed business expenses due under Section 4.2.1 of
this Agreement and (D) any accrued but unpaid vacation;
(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) solely in the
event of the termination 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
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<PAGE>
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 the
extended exercise period for any vested stock options, to the
extent provided in Section 3.3.2.; and
(v)
such
employee benefits accrued under the employee benefit plans,
programs and arrangements of the Company described in Section
4.1
as to which the Executive or his estate may be entitled at the
time of such termination.
Any
other compensation deferred on behalf of the Executive at the time
of
his death or Disability under any deferred compensation plan shall
be paid at
the time or times specified for payment pursuant to the provisions
of such plan.
The
portion of any Annual Bonus to which the Executive may, in
accordance
with the provisions governing that Annual Bonus, become entitled in
the
performance period in which his death or Disability Date occurs
shall be paid to
the Executive by the fifteenth (15th) day of the third calendar
month following
the close of that performance period, unless payment by such date
is not
administratively practicable, in which event payment shall be made
as soon
thereafter as administratively possible.
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;
(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;
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<PAGE>
(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 termination by the Company for
Cause, then the Executive shall be entitled to receive:
(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
termination, to the extent such portions become payable at
the time of such termination in accordance with their
terms, (C) any unreimbursed business expenses that are due
under Section 4.2.1 of this Agreement and (D) any accrued
but unpaid vacation; and
(ii) such
employee benefits accrued under the employee benefit
plans, programs and arrangements of the Company described
in Section 4.1 as to which the Executive may be entitled at
the time of such termination.
Any
compensation deferred on behalf of the Executive at the time of
his
termination for Cause under any deferred compensation plan shall,
to the extent
vested at the time of such termination, be paid at the time or
times specified
for payment pursuant to the provisions of such plan.
6.2
Severance Benefit. Upon the termination of the Executive's
employment on
November 4, 2006 pursuant to the terms of this Amended and
Restated
Agreement, other than by reason of (i) a Termination for Cause or
(ii)
death or Disability, Executive shall, subject to his execution of
an
effective and irrevocable re
