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 Rick Friedman ("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 sue 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
Sarbanes-Oxley
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 additiona
