EXECUTIVE OFFICER W/O
EMPLOYMENT AGREEMENT
ULTRATECH, INC.
GRANT AGREEMENT
A. The Corporation’s Board of
Directors (the “Board”) has adopted the
Corporation’s 1993 Stock Option/Stock Issuance Plan (the
“Plan”) for the purpose of attracting and retaining the
services of key employees (including officers and directors),
non-employee Board members and consultants and other independent
advisors.
B. Optionee is an individual who is to
render valuable services to the Corporation or one or more parent
or subsidiary corporations, and this Agreement is executed pursuant
to, and is intended to carry out the purposes of, the Plan in
connection with the Corporation’s grant of a stock option to
Optionee.
NOW, THEREFORE , it is hereby agreed as follows:
1. Grant of Option . Subject
to and upon the terms and conditions set forth in this Agreement,
the Corporation hereby grants to Optionee, as of the grant date
(the “Date of Grant”) specified in the accompanying
Notice of Grant of Stock Option (the “Grant Notice”), a
stock option to purchase up to that number of shares of the
Corporation’s Common Stock (the “Shares Granted”)
specified in the Grant Notice. Such Shares Granted shall be
purchasable from time to time during the option term at the option
price (the “Option Price”) specified in the Grant
Notice.
2. Option Term . This option
shall expire at the close of business on the expiration date (the
“Expiration Date”) specified in the Grant Notice,
unless sooner terminated in accordance with Paragraph 5 or
6.
3. Limited Transferability
.
A. This option shall be neither
transferable nor assignable by Optionee other than by will or the
laws of inheritance following Optionee’s death and may be
exercised, during Optionee’s lifetime, only by
Optionee.
B. If this option is designated a
Non-Statutory Option in the Grant Notice, then this option may be
assigned in whole or in part during Optionee’s lifetime by
gift or pursuant to a domestic relations order to one or more
members of Optionee’s family or to a trust established for
the exclusive benefit of one or more such family members. The
assigned portion shall be exercisable only by the person or persons
who acquire a proprietary interest in the option pursuant to such
assignment. The terms applicable to the assigned portion shall be
the same as those in effect for this option immediately prior to
such assignment.
A. This option shall become exercisable for
the Shares Granted in accordance with the installment schedule
specified in the Grant Notice. As the option becomes exercisable
for one or more installments, those installments shall accumulate,
and the option shall remain exercisable for the accumulated
installments until the Expiration Date or sooner termination of the
option term under Paragraph 5 or Paragraph 6 of this
Agreement. In no event shall this option become exercisable for any
additional Shares Granted following Optionee’s cessation of
Service.
B. Should Optionee’s Service be
terminated by reason of (A) death, (B) Involuntary
Termination at or after attainment of age sixty-five (65) or
(C) permanent disability, then all of the Option Shares at the
time subject to this option but not otherwise vested shall vest in
full so that this option may be exercised for any or all of the
Option Shares as fully vested shares of Common Stock.
5. Cessation of Service .
The option term specified in Paragraph 2 shall terminate (and
this option shall cease to be outstanding) prior to the Expiration
Date in accordance with the following provisions:
(i) This option shall immediately terminate
and cease to be outstanding for any Shares Granted for which it is
not exercisable at the time of Optionee’s cessation of
Service.
(ii) Should Optionee cease Service for any
reason other than (A) death, (B) Involuntary Termination at or
after attainment of age sixty-five (65) or (C) permanent
disability while this option remains outstanding, then Optionee
shall have a three (3)-month period measured from the date of such
cessation of Service in which to exercise this option for any or
all of the Shares Granted for which this option is exercisable at
the time of such cessation of Service. In no event, however, may
this option be exercised at any time after the specified Expiration
Date of the option term. Upon the expiration of such three
(3)-month period or (if earlier) upon the specified Expiration Date
of the option term, this option shall terminate and cease to be
outstanding.
(iii) Should Optionee die while in Service
or within the three (3)-month period following his or her cessation
of Service, then the personal representative of Optionee’s
estate, or the person or persons to whom this option is transferred
pursuant to Optionee’s will or in accordance with the laws of
descent and distribution or the person or persons to whom this
option is assigned in accordance with Paragraph 3, as the case
may be, shall have the right to exercise the option for any or all
of the Shares Granted for which this option is exercisable at the
time of Optionee’s cessation of Service, less any Shares
Granted subsequently purchased by Optionee prior to death. Such
right shall lapse, and this option shall terminate and cease to
remain outstanding, upon the earlier of (A) the
expiration of the twelve (12)-month period measured from the date
of Optionee’s death or (B) the Expiration
Date.
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(iv) Should Optionee become permanently
disabled and cease by reason thereof to remain in Service or should
Optionee’s Service be terminated by reason of an Involuntary
Termination at or after attainment of age sixty five (65), then
Optionee shall have a twelve (12) month period commencing with
the date of such cessation of Service in which to exercise this
option for any or all of the Shares Granted for which this option
is exercisable at the time of such cessation of Service. In no
event, however, may this option be exercised at any time after the
specified Expiration Date of the option term. Upon the expiration
of such limited period of exercisability or (if earlier) upon the
Expiration Date, this option shall terminate and cease to be
outstanding.
Note: If this option is designated as an
incentive stock option in the Grant Notice, then this option shall
cease to qualify for favorable tax treatment under the Federal tax
laws if (and to the extent) this option is exercised for one or
more Shares Granted: (i) more than three (3) months after
the date Optionee ceases to be an Employee for any reason other
than death or permanent disability (as defined below) or
(ii) more than one (1) year after the date Optionee
ceases to be an Employee by reason of permanent
disability.
(v) Should (A) Optionee’s
Service be terminated for misconduct (including, but not limited
to, any act of dishonesty, willful misconduct, fraud or
embezzlement) or (B) Optionee make any unauthorized use or
disclosure of confidential information or trade secrets of the
Corporation or any parent or subsidiary, then in any such event
this option shall terminate immediately and cease to be
outstanding.
(vi) During the limited period of
post-Service exercisability applicable pursuant to subparagraphs
(ii) through (iv) above, this option may not be exercised
in the aggregate for more than the number of Shares Granted (if
any) for which this option is, at the time of the Optionee’s
cessation of Service, exercisable in accordance with either the
normal exercise provisions specified in the Grant Notice or the
special acceleration provisions of Paragraph 4.B or
Paragraph 6 of this Agreement.
(vii) For purposes of this Agreement, the
following definitional provisions shall be in effect:
A. Optionee shall be deemed to remain in
Service for so long as such individual renders services on a
periodic basis to the Corporation (or any parent or subsidiary) in
the capacity of an Employee, a non-employee member of the board of
directors or an independent consultant or advisor.
B. Optionee shall be considered to be an
Employee for so long as such individual remains in the
employ of the Corporation or any parent or subsidiary, subject to
the control and direction of the employer entity not only as to the
work to be performed but also as to the manner and method of
performance.
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C. Optionee shall be deemed to be permanently
disabled and to have incurred a permanent disability if
Optionee is unable to engage in any substantial gainful activity by
reason of any medically-determinable physical or mental impairment
expected to result in death or to be of continuous duration of
twelve (12) months or more.
D. A corporation shall be considered to be a
subsidiary of the Corporation if it is a member of an
unbroken chain of corporations beginning with the Corporation,
provided each such corporation in the chain (other than the last
corporation) owns, at the time of determination, stock possessing
fifty percent (50%) or more of the total combined voting power of
all classes of stock in one of the other corporations in such
chain.
E. A corporation shall be considered to be a
parent of the Corporation if it is a member of an unbroken
chain ending with the Corporation, provided each such corporation
in the chain (other than the Corporation) owns, at the time of
determination, stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the
other corporations in such chain.
F. An involuntary termination shall mean
the termination of the Optionee’s Service by reason of such
individual’s involuntary dismissal or discharge by the
Corporation (or any Parent or Subsidiary) for reasons other than a
termination for misconduct.
G. Employment agreement shall mean the
written employment agreement (if any) between the Corporation and
the Optionee in effect on the option Date of Grant.
6. Corporate Transaction
.
A. In the event of any of the following
stockholder-approved transactions to which the Corporation is a
party (a “Corporate Transaction”):
(i) a merger or consolidation in which the
Corporation is not the surviving entity and in which securities
possessing more than fifty percent (50%) of the total combined
voting power of the Corporation’s outstanding securities are
transferred to person or persons different from the persons holding
those securities immediately prior to such merger or
consolidation,
(ii) the sale, transfer or other
disposition of all or substantially all of the assets of the
Corporation in complete liquidation or dissolution of the
Corporation, or
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(iii) any reverse merger in which the
Corporation is the surviving entity but in which securities
possessing more than fifty percent (50%) of the total combined
voting power of the Corporation’s outstanding securities are
transferred to a person or persons different from those who held
such securities immediately prior to such merger,
this option, to
the extent outstanding at such time but not otherwise fully
exercisable, shall automatically accelerate so that such option
shall, immediately prior to the specified effective date for the
Corporate Transaction, become fully exercisable for all the Shares
Granted which are at the time subject to such option and may be
exercised for all or any portion of such shares as fully-vested
shares.
B. This option, to the extent not
previously exercised, shall terminate upon the consummation of such
Corporate Transaction and cease to be
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