Exhibit 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
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This Amendment to Employment Agreement (this "Amendment") is entered
into on January 14, 2007, by and between Xxxx Xxxxxxxx (the "Executive") and
Ultratech, Inc., a Delaware corporation (the "Company"), and shall be effective
as of January 12, 2006 (the "Effective Date").
WITNESSETH:
WHEREAS, the Executive is currently a party to an employment agreement
with the Company dated February 3, 2006 (the "Employment Agreement");
WHEREAS, the Executive has resigned, effective as of December 14, 2006,
his position as Senior Vice President, World-wide Sales and Customer Service of
the company and, effective as of January 14, 2007, his employment with the
Company.
WHEREAS, both the Company and the Executive desire to enter into a
Separation and General Release Agreement to obtain the mutual benefits provided
therein; and
WHEREAS, the Company and the Executive desire to amend and restate the
terms and conditions of the Employment Agreement so as to set forth the terms
and conditions which will govern his employment, and separation from employment,
with the Company following the Effective Date.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and the Executive agree as follows:
1. Amendments to Employment Agreement
a. Resignation. Section 2 of the Employment Agreement is hereby amended
by adding the following sentence at the end of Section 2:
"Executive hereby irrevocably resigns from his employment in any
capacity with the Company and any of its affiliates, effective January
14, 2006."
b. Delayed Commencement Date for Payments and Benefits. Section 6.2 is
hereby amended by adding the following paragraph immediately after
Section 6.2(iv):
"Notwithstanding any provision to the contrary in this Agreement, no
payments or benefits to which the Executive otherwise becomes entitled
under this Agreement in connection with his termination or resignation
of employment shall be made or provided to Executive prior to the
earlier of (i) the expiration of the six (6)-month period measured
from the date of his "separation from service" with the Company (as
such term is defined in Treasury Regulations issued under Code Section
409A) or (ii) the date of his death, if the Executive is deemed at the
time of such separation from service to be a "key employee" within the
meaning of that term under Code Section 416(i) and such delayed
commencement is otherwise required in order to avoid a prohibited
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distribution under Code Section 409A(a)(2). Upon the expiration of the
applicable Code Section 409A(a)(2) deferral period, all payments and
benefits deferred pursuant to this paragraph (whether they would have
otherwise been payable in a single sum or in installments in the
absence of such deferral) shall be paid or reimbursed to the Executive
in a lump sum, and any remaining payments and benefits due under this
Agreement shall be paid or provided in accordance with the normal
payment dates specified for them herein."
c. Termination Without Good Reason. Section 7.1 of the Employment
Agreement is hereby amended and restated in its entirety, to read in
its entirety as follows:
"If the Executive voluntarily terminates his employment with
the Company without Good Reason on or before January 14, 2007,
the termination shall be effective on January 14, 2007. Upon
such termination of his employment without Good Reason prior to
a Change of Control (as defined in Section 8.1.1) or a
Corporate Transaction (as defined in Section 8.1.2), the
Executive shall, subject to the Executive's execution of a
release and non-disparagement agreement in a form acceptable to
the Company, have the same entitlements and (subject to the
same payment schedule) as provided under Section 6.2 for a
termination by the Company without Cause."
2. Governing Law. The validity, meaning and effect of this Amendment shall be
determined in accordance with the internal laws of the State of California
without reference to the choice of law provisions of such state's law.
3. Counterparts. This Amendment may be executed in counterparts, each of which
when so executed and delivered shall be deemed to be an original for all
purposes, but all such counterparts shall constitute but one in the same
instrument.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Amendment to the Employment Agreement as of the date first above written.
THE COMPANY
Ultratech, Inc.,
a Delaware corporation
By: /s/ Art Zafiropoulo
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Art Zafiropoulo
Chief Executive Officer
THE EXECUTIVE
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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