Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
This Amended and Restated Employment Agreement (this "Agreement")
is
entered into as of January 15, 2007, by and between Bruce R. Wright
(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and totally superseded an employment agreement between the parties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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<PAGE>
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
