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 Xxxx X. Xxxxxx ("Executive" ) and Ultratech, Inc., a
Delaware corporation (the "Company" ).
W I T N E S S E T H:
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WHEREAS, the Executive is currently employed by the Company pursuant to
an Amended and Restated Employment Agreement, dated November 2, 2006 (the
"Employment Agreement"); and
WHEREAS, on October 5, 2006, Executive resigned from his position as
President and Chief Operating Officer;
WHEREAS, the Company and Executive agree that, subject to Executive
entering into this Agreement, Executive is 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
shall retire from employment with the Company and any of its subsidiaries or
affiliates, effective November 4, 2006 (the "Resignation Date"). Executive
further acknowledges that, as of October 5, 2006, Executive ceased holding the
title of, and ceased performing services as, the Company's President and Chief
Operating Officer and ceased to be an executive officer of the Company.
3. No Right of Reinstatement: Executive will have no right to
reinstatement with the Company or any of its subsidiaries.
4. No Other Compensation or Benefits: Except as expressly set forth in
the Employment Agreement, Executive acknowledges that he will not receive, and
is not entitled to receive, any additional compensation, severance or benefits
after the Resignation Date.
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.
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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"),
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 xxx 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 Xxxxxxxx-Xxxxx Act; tort law;
contract law; wrongful 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 8, 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 13 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:
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"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 additional claims or facts. Executive acknowledges that he understands the
significance and consequence of such release and such specific waiver of SECTION
1542.
8. Waiver Of Age Discrimination Claims: Executive expressly acknowledges
and agrees that, by entering into this Agreement, he is waiving any and all
rights or claims that he may have arising under the Age Discrimination in
Employment Act of 1967, as amended, which have arisen on or before the date of
execution of this Agreement. Executive also expressly acknowledges and agrees
that:
a. In return for this Agreement, Executive will receive
consideration, i.e., something of value, beyond that to which he
was already entitled before entering into this Agreement;
b. Executive is hereby advised in writing by this Agreement to
consult with an attorney before signing this Agreement, and has
done so;
c. Executive is hereby informed that he has 21 days within which to
consider whether to sign and accept the terms of this Agreement
and that if he wishes to execute this Agreement prior to the
expiration of such 21-day period, he will execute the
Acknowledgment and Waiver attached hereto as Exhibit B;
d. Nothing in this Agreement prevents or precludes Executive from
challenging or seeking a determination in good faith of the
validity of this waiver under the ADEA, nor does it impose any
condition precedent, penalties or costs from doing so, unless
specifically authorized by federal law; and
e. Executive is hereby informed that he has seven (7) days following
the date he executes the Agreement in which to revoke it, and this
Agreement will become null and void if Executive elects revocation
during that time. To be valid and effective, any revocation must
be in writing and must be received by the Company during the
seven-day revocation period. In the event that Executive validly
exercises his right of revocation, neither the Company nor
Executive will have any obligations under this Agreement.
9. Confidential Information, Inventions Assignment and Non-Solicitation.
The terms of the Confidentiality Agreement remain in full and force and effect.
Executive acknowledges that he has continuing obligations to the Company under
the Confidentiality Agreement that remain in effect beyond the termination of
his employment.
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10. Return of Company Property and Proprietary Information: Executive
acknowledges that, by no later than the Resignation Date, he shall return to the
Company all Company Property and Confidential Information that are in his
possession, custody or control unless directed otherwise by the Company. For
purposes of this Agreement, the term "Company Property" shall mean all personal
computers, laptop computers, cellular telephones, security cards, keys,
diskettes, pda's, and other equipment or property owned by the Company that was
provided to Executive during his employment. For purposes of this Agreement, the
term "Confidential Information" shall have the same meaning as used in the
Confidentiality Agreement. Executive further agrees to make a diligent search
for any Company Property and Company documents in his possession or control
prior to the Effective Date. In addition, (i) Executive will complete any forms
necessary, including those of any banking institution, to remove his name from
any list of Company authorized signatories, and (ii) Executive shall otherwise
assist the Company in taking all actions required to confirm that all Company
property has been returned and that full ownership of all Company property is
vested solely in the Company.
11. Equity: The parties agree that Executive currently holds options to
purchase 458,700 shares of the Company's Common Stock (the "Options"). Of the
458,700 shares of Common Stock subject to the Options, 383,700 shares are vested
and 75,000 shares are unvested. As further consideration for this Agreement, the
Company has agreed that, subject to this Agreement becoming effective, on the
Resignation Date each of Executive's unvested Options shall become vested as to
an additional 25% of the shares of Common Stock subject thereto (or such lesser
percentage as to make that Option 100% vested).
Accordingly, upon the Resignation Date subject to this Agreement becoming
effective, Executive shall have the right to purchase a total of 402,450 vested
shares of the Company's Common Stock in accordance with the terms of the
applicable Stock Option Agreement for each of Executive's Options.
In addition, Executive holds an award of restricted stock units covering 7,500
shares of the Company's Common Stock which was made to him on January 31, 2006
pursuant to a Restricted Stock Unit Issuance Agreement (the "RSU Agreement") of
that same date between Executive and the Company. Currently, none of the 7,500
shares underlying those restricted stock units are vested. Subject to this
Agreement becoming effective, on the Resignation Date, Executive shall vest in
25% of the underlying shares so that 1,875 vested shares of Common Stock will
become issuable to him on May 4, 2007 in accordance with the deferred issuance
provisions of Section 9 of the RSU Agreement, subject to Company's collection of
the applicable withholding taxes pursuant to Section 8 of that Agreement.
Except as set forth in this Section 11, Executive acknowledges and agrees that
he has no further right or benefits under any agreement to receive or acquire
any security or derivative security in or with respect to the Company or any
Releasee.
12. Non-Disparagement: Executive agrees that he shall not make any
disparaging remarks, or any remarks that could reasonably be construed as
disparaging, whether orally or in writing, regarding the Company or its
subsidiaries or affiliates or any of their respective officers, directors,
trustees, employees, partners, owners, or agents, in any manner that is intended
to be harmful to them or their business, products, business reputation or
personal reputation, including but not limited to statements to the media,
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former and present employees, consultants or customers of the Company, or
existing or potential investors of the Company. Nothing in this Section 12 is
intended to prohibit Executive from testifying or responding truthfully in
response to any court order, arbitral order, subpoena or government
investigation, provided that Executive: (i) provides written notice to the
Company within 72 hours of receiving any such order, subpoena or request for
information from any governmental agency and (ii) cooperates with the Company to
the extent the Company elects to object to such subpoena, court order, or
governmental investigation.
13. Warranty of No Other Actions: Executive hereby represents and
warrants to the Company that he has not filed any lawsuit or administrative
action against the Company or any other Company Releasee with any court,
arbitral forum or governmental agency.
14. Assignments: The parties warrant and represent that they have not
assigned or transferred to any person not a party to this Agreement any released
matter or any part or portion thereof and each party hereto shall defend,
indemnify and hold harmless the other from and against any claim (including the
payment of attorneys' fees and costs actually incurred whether or not litigation
is commenced) based on or in connection with or arising out of any such
assignment or transfer made, purported or claimed. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective heirs,
successors and permitted assigns. The Company may assign this Agreement,
including any and all rights under this Agreement, without notice in its sole
discretion. This Agreement is personal to Executive and may not be assigned, in
whole or in part, by Executive.
15. Waivers: No waiver of any provision or consent to any exception to
the terms of this Agreement shall be effective unless in writing and signed by
the party to be bound and, then, only to the specific purpose, extent and
instance so provided.
16. Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts made
and performed in the State of California and without regard to conflicts of laws
doctrines.
17. Arbitration: Any controversy or claim arising out of or relating to
this Agreement, its enforcement, arbitrability or interpretation, or because of
an alleged breach, default, or misrepresentation in connection with any of its
provisions, or arising out of or relating in any way to Executive's employment
or association with the Company shall be resolved in accordance with Section 21
of the Employment Agreement.
18. Authority. The Company represents and warrants that all corporate
action on the part of the Company necessary for the authorization, execution,
delivery and performance of this Agreement have been taken.
19. Severability: If any provision of this Agreement or its application
is held invalid, the invalidity shall not affect other provisions or
applications of the Agreement which can be given effect without the invalid
provision or application and, therefore, the provisions of this Agreement are
declared to be severable.
20. Entire Agreement: With the exception of the Stock Option Agreements,
the RSU Agreement, the Indemnification Agreement, the Confidentiality Agreement,
and the Employment Agreement, this instrument constitutes and contains the
entire agreement and understanding concerning Executive's employment and the
other matters addressed. Subject to the foregoing sentence, the parties intend
it as a complete and exclusive statement of the terms of their agreement, and it
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supersedes and replaces all prior negotiations and agreements, proposed or
otherwise, whether written or oral, between the parties concerning the subject
matters. Except as expressly set forth in this Section 20, this is a fully
integrated document. This Agreement may be modified only with a written
instrument executed by both parties.
21. Voluntary Counsel: Executive agrees and acknowledges that he has read
and understood this Agreement prior to signing it, has entered into this
Agreement freely and voluntarily and has received legal advice from counsel of
his own choosing prior to entering into this Agreement.
22. Notices: All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by telecopy or sent by mail (registered or certified mail, postage
prepaid, return receipt requested) or overnight courier (prepaid) to the Company
or to Executive, as applicable, as follows:
To the Company:
Ultratech, Inc.
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Chair, Compensation Committee of the Board of Directors
w/ copies to
Attn: Xxxxxx Xxxxxxx
O'Melveny & Xxxxx LLP
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
To Executive:
Xxxx X. Xxxxxx
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Either party may change its address set forth above by written notice given to
the other party in accordance with the foregoing. Any notice shall be effective
when personally delivered, or five (5) business days after being mailed in
accordance with the foregoing.
23. Section Headings: Section and other headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning of interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of the date first above written.
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/s/ Xxxx X. Xxxxxx Dated: November 3, 2006
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XXXX X. XXXXXX
ULTRATECH, INC.
By: /s/ Xxxxx X. Xxxxxx Dated: November 3, 2006
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XXXXX X. XXXXXX
Chief Financial Officer
Ultratech, Inc.
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EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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EXHIBIT B
ACKNOWLEDGMENT AND WAIVER
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I, Xxxx Xxxxxx, hereby acknowledge that I was given 21 days to consider
the foregoing Agreement and voluntarily chose to sign the Agreement prior to the
expiration of the 21-day period.
EXECUTED this 3rd day of November 2006, at Santa Xxxxx County,
California.
/s/ Xxxx X. Xxxxxx
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Xxxx Xxxxxx
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