Contract
Exhibit 10.35
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January 31, 2017
Xxxx Xxxxx
Re: Change in Control Severance Agreement
Dear Xxxx:
This letter confirms our agreement as to your change in control severance protections, as
set forth below, with Ultratech, Inc., a Delaware corporation (the “Company”). Capitalized
terms used in this letter agreement are defined in Exhibit A hereto if not otherwise defined
herein.
You will be entitled to the Severance Benefit set forth below if all of the following
conditions are satisfied:
1. A Change in Control occurs on or before June 30, 2018.
2. You remain employed by the Company through the effective time of such Change
in Control.
3. Your employment with the Company is terminated upon or within twelve months
following such Change in Control, and such termination of employment is the
result of (1) a termination by the Company without Cause or (2) a termination by
you for Good Reason.
4. You sign and return to the Company not later than 52 days after your separation
from service with the Company a general release agreement in the form attached
hereto as Exhibit B (together with any changes to such form as the Company’s
Board of Directors may make to such form and communicate to you prior to your
separation from service, and with any changes limited to those that the Board of
Directors reasonably believes are necessary to make the general release agreement
enforceable and compliant with law, and are consistent with the purposes and
intent of this letter agreement and the form attached hereto), and you do not
revoke such release agreement pursuant to any revocation right afforded by
applicable law.
The “Severance Benefit” consists of the following:
A lump sum cash severance payment equal to one times your Base Salary Rate.
This payment is subject to applicable withholdings and deductions and will be
Exhibit 10.35
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made on (or within ten days following) the date that is 60 days after your
separation from service with the Company.
In lieu of any additional cash bonus, a lump sum cash payment equal to 25% of
your Base Salary Rate. This payment subject to applicable withholdings and
deductions and will be made on (or within ten days following) the date that is 60
days after your separation from service with the Company.
Accelerated vesting of your equity awards that are outstanding and unvested
immediately prior to your separation from service with the Company (unless, as
to a particular award, the terms and conditions set forth in the applicable award
agreement expressly supersede this letter agreement, in which case the award will
be treated as provided in the applicable award agreement).
The amount of your outstanding deferred bonus (if any) with respect to any
completed fiscal year of the Company that remains outstanding and unpaid
(including any such bonus that remains subject to vesting based on the passage of
time and continued service) shall vest. Any such accelerated bonus payment is
subject to applicable withholdings and deductions and will be paid to you on (or
within ten days following) the date that is 60 days after your separation from
service with the Company. This clause controls over any provision of the
Company’s Long-Term Incentive Compensation Plan that may otherwise provide
for a pro-rated payment of any deferred bonus in such circumstances (but, for
clarity, you will not be entitled to any such pro-rated payment under the
applicable Long-Term Incentive Compensation Plan if you are entitled to a non-
pro-rated payment of such amount pursuant to this letter agreement), and in all
cases this letter agreement controls as to the timing of payment of any accelerated
deferred bonus payment you may be entitled to in connection with your separation
from service with the Company.
You would also be entitled to (1) payment of any of your accrued but unpaid base salary
and vacation pay at the time of your separation from service with the Company, (2)
reimbursement of any business expenses that are reimbursable by the Company in accordance
with standard Company policy but have not theretofore been reimbursed, and (3) payment of any
vested and accrued employee benefits (including earned and unpaid bonuses) that are by their
terms payable to you on or after your separation from service with the Company with each such
benefit to be paid in accordance with the applicable terms in effect for such payment at the time
of your separation from service. You will not, however, be entitled to severance pay under any
severance plan, program or policy of the Company if your employment terminates in the
circumstances described above.
In the event any payments or benefits contemplated by this letter agreement would
otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code
(“Section 280G”), then those payments and benefits shall be subject to reduction to the extent
necessary to assure that the payments and benefits provided to you pursuant to this letter
agreement will be limited to the greater of (i) the amount of payments and benefits which can be
Exhibit 10.35
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provided without triggering a parachute payment under Section 280G or (ii) the maximum dollar
amount of payments and benefits which can be provided to you pursuant to this letter agreement
so as to provide you with the greatest after-tax amount of such payments and benefits after taking
into account any excise tax you may incur under Section 4999 of the Internal Revenue Code with
respect to those payments and benefits and any other benefits or payments to which you may be
entitled in connection with any change in control or ownership of the Company or the
subsequent termination of your employment. The calculations required under this paragraph
shall be made by a public accounting firm or executive compensation consulting firm (the
“Auditor”) selected by the Company, and the fees of such Auditor shall be paid by the
Company. If a reduction in payments or benefits constituting a parachute payment is required
pursuant to the foregoing provisions of this paragraph, then such reduction shall be effected in
the following order: first, your cash lump sum severance payment described in the first bullet
point under your Severance Benefit above shall be reduced, then your cash lump sum severance
payment described in the second bullet point under your Severance Benefit above shall be
reduced, then the amount of your deferred annual bonuses which vest and become payable on an
accelerated basis as described in the fourth bullet point under your Severance Benefit above shall
be reduced (with such reduction to be applied pro-rata to each such deferred amount), and finally
the accelerated vesting of your equity awards as described in the third bullet point under your
Severance Benefit above shall be reduced (based on the amount of the parachute payment
calculated for each such option or award in accordance with the Treasury Regulations under
Section 280G), with such reduction to occur in the same chronological order in which those
options and awards were granted.
If your employment with the Company terminates in any circumstances other than as
described above, or if any of the other conditions to the Severance Benefit set forth above are not
satisfied, you will not be entitled to the Severance Benefit.
This letter agreement will be governed by and construed in accordance with the internal
laws of the State of California applicable to contracts made and to be entirely performed within
the State of California. This letter agreement is binding on any successors to the Company and
any successors to all or substantially all of the Company’s business. This letter agreement may
not be amended except by a formal, definitive written agreement that is signed by an authorized
officer of the Company. Nothing in this letter agreement confers any right to continued
employment, and either you or the Company may terminate your employment at will and with or
without cause or notice at any time for any reason. This letter agreement will be construed and
interpreted to avoid any tax, penalty or interest under Section 409A of the Internal Revenue
Code.
Each party recognizes that this is a legally binding contract and acknowledges and agrees
that they have had the opportunity to consult with legal counsel of their choice. You
acknowledge and agree that you have read and understand this letter agreement, that you are
entering into it freely and voluntarily, that O’Melveny & Xxxxx LLP is counsel to the Company
(not counsel to you) and that in entering into this letter agreement you are not relying on any
statements or representations other than as expressly set forth in this letter agreement.
Exhibit 10.35
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This letter agreement constitutes the entire agreement between us with respect to your
severance rights in connection with a termination of your employment with the Company on or
following a Change in Control.
ULTRATECH, INC.
By:
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
ACCEPTED AND AGREED:
___________________________________
Xxxx Xxxxx
Exhibit 10.35
A-1
EXHIBIT A
DEFINED TERMS
For purposes of this letter agreement, a “Change in Control” means the occurrence of
either a “Change in Control” or a “Corporate Transaction” as these terms are defined in the
Company’s 1993 Stock Option/Stock Issuance Plan, as amended and restated.
For purposes of this letter agreement, “Cause” refers to any of the following
circumstances, except that in the case of the reasons set forth in (i) and (vi) below, only after
written notice by the Company stating the reason for the proposed termination for Cause and
your failure to cure the stated reason within ninety (90) days after receipt of such notice:
(i) your repeated failure to perform any essential duty of your position other than due
to disability, illness or injury;
(ii) your 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) your conviction of or pleading guilty or nolo contendere to any felony involving
theft, embezzlement, dishonesty or moral turpitude;
(iv) your 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) your commitment of an act of material dishonesty in connection with your
responsibilities as an employee that is intended to result in your personal
enrichment or the personal enrichment of your family or others; or
(vi) your material breach of any material agreement between you and the Company or
any subsidiary of the Company or successor to the Company.
For purposes of this letter agreement, you may terminate your employment with the
Company for “Good Reason” by providing to the Company a written notice of termination
(which shall specify the grounds for your termination and shall be effective upon delivery)
within thirty (30) days after the applicable cure period, without your written consent, of one of
the following events that occur on or after a Change in Control and has not been cured within
thirty (30) days after written notice thereof has been given by you to the Company (which notice
must be given within sixty (60) days after the initial occurrence of such circumstances):
(i) a material reduction in the level of your annualized rate of base salary;
(ii) a material breach by the Company or any subsidiary of the Company or successor
to the Company of the terms of any material agreement between you and the
Company or any subsidiary of the Company or successor to the Company;
Exhibit 10.35
A-2
(iii) a major reduction in the nature or scope of your overall responsibilities (excluding
any changes made prior to the Change in Control), provided that in no event shall
(A) a change resulting from the Company ceasing to be a publicly-traded
Company (including a transaction in which the Company ceases to be publicly-
traded and the Company becomes a subsidiary of a parent corporation), or (B) a
change in the person or position to which you report, constitute such a reduction;
or
(iv) a material relocation of your principal office with the Company, with a relocation
that is more than sixty (60) miles from the location of your principal office on the
date of this letter agreement to be deemed material for such purpose.
For purposes of this letter agreement, “Base Salary Rate” means your highest annualized
rate of base salary from the Company in effect at any time in the one year period preceding the
date of your separation from service with the Company.
* * *
Exhibit 10.35
EXHIBIT B
FORM OF RELEASE
This Release (this “Agreement”) is entered and given by _________________________
(“Executive”) as contemplated by the Executive’s change in control severance letter agreement
(the “Severance Agreement”) with Ultratech, Inc., a Delaware corporation (the “Company”).
1. Release of Claims. Executive, on his or her own behalf and on behalf of his or
her descendants, dependents, heirs, executors, administrators, assigns and successors, and each
of them, hereby fully and forever releases the Company, its divisions, subsidiaries, parents, or
affiliated corporations, past and present, and each of them, as well as its and their assignees,
successors, directors, officers, stockholders, partners, representatives, attorneys, agents or
employees, past or present, or any of them (individually and collectively, “Releasees”), from,
and agrees not to xxx concerning, or in any manner institute, prosecute or pursue, or cause to be
instituted, prosecuted, or pursued, any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or unsuspected, that
Executive may possess against any of the Releasees arising from any acts or omissions that have
occurred up until and including the date and time that Executive signs the Agreement
(collectively, “Claims”), including, without limitation, (a) any and all Claims relating to or
arising from Executive’s employment relationship with the Company; (b) any and all Claims for
violation of any federal, state or municipal law, constitution, regulation, ordinance or common
law, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act
of 1991; the Americans with Disabilities Act of 1990; the Fair Labor Standards Act; the
Employee Retirement Income Security Act of 1974; the federal Family Medical Leave Act; the
California Business and Professions Code; the California Family Rights Act; the California Fair
Employment and Housing Act; and the California Labor Code; and all amendments to each such
law; (c) any and all Claims for any wrongful discharge of employment; termination in violation
of public policy; discrimination; harassment; retaliation; breach of contract, both express and
implied; breach of covenant of good faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional
misrepresentation; negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; personal injury; invasion of privacy; false
imprisonment; and conversion; (d) any and all Claims for wages, benefits, severance, vacation,
bonuses, commissions, equity, expense reimbursements, or other compensation or benefits; and
(e) any and all Claims for attorneys' fees, costs and/or penalties; provided, however, that the
foregoing release does not apply to any obligation of the Company to Executive pursuant to any
of the following: (1) the Severance Agreement; (2) any right to indemnification that Executive
may have pursuant to the Company’s bylaws, its corporate charter or under any written
indemnification agreement with the Company (or any corresponding provision of any subsidiary
or affiliate of the Company) with respect to any loss, damages or expenses (including but not
limited to attorneys’ fees to the extent otherwise provided) that Executive may in the future incur
with respect to his service as an employee, officer or director of the Company or any of its
subsidiaries or affiliates; (3) with respect to any rights that Executive may have to insurance
coverage for such losses, damages or expenses under any Company (or subsidiary or affiliate)
directors and officers liability insurance policy; (4) any rights to continued medical and dental
coverage that Executive may have under COBRA; or (5) any rights to payment of vested benefits
Exhibit 10.35
that Executive may have under any benefit plan maintained by the Company. In addition, this
release does not cover any Claim that cannot be so released as a matter of applicable law.
Notwithstanding anything to the contrary herein, nothing in this Agreement prohibits Executive
from filing a charge with or participating in an investigation conducted by any state or federal
government agencies. However, Executive does waive the right to receive any monetary or other
recovery, should any agency or any other person pursue any claims on Executive’s behalf arising
out of any claim released pursuant to this Agreement; provided that this waiver is given only to
the maximum extent permitted by law and, without limiting the generality of the foregoing
proviso, nothing in this Agreement prevents Executive from accepting a whistleblower award
from the Securities and Exchange Commission pursuant to Section 21F of The Securities
Exchange Act of 1934, as amended. Executive acknowledges and agrees that he or she has
received any and all leave and other benefits that he or she has been and is entitled to pursuant to
the Family and Medical Leave Act of 1993.
2. Waiver of Unknown Claims. This Agreement is intended to be effective as a
general release of and bar to each and every Claim hereinabove specified. Accordingly,
Executive hereby expressly waives any rights and benefits conferred by Section 1542 of the
California Civil Code and any similar provision of any other applicable state law as to the
Claims. Section 1542 of the California Civil Code provides:
“A GENERAL RELEASE DOES NOT EXTEND TO A CLAIM WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR
HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.”
Executive acknowledges that he or she later may discover claims, demands, causes of action or
facts in addition to or different from those which Executive now knows or believes to exist 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 its terms. Nevertheless, Executive
hereby waives, as to the Claims, any claims, demands, and causes of action that might arise as a
result of such different or additional claims, demands, causes of action or facts.
3. ADEA Waiver. Executive expressly acknowledges and agrees that by entering
into this Agreement, he or she is waiving any and all rights or claims that he or she may have
arising under the Age Discrimination in Employment Act of 1967, as amended (the “ADEA”),
and that this waiver and release is knowing and voluntary. Executive and the Company agree
that this waiver and release does not apply to any rights or claims that may arise under the
ADEA after the date Executive signs this Agreement. Executive further expressly acknowledges
and agrees that:
(a) In return for this Agreement, he or she will receive consideration beyond
that which he or she was already entitled to receive before executing this Agreement;
(b) Executive is hereby advised in writing by this Agreement to consult with
an attorney before signing this Agreement;
Exhibit 10.35
(c) Executive was given a copy of this Agreement on [_________, 201_], and
informed that he or she had twenty-one (21) days within which to consider this
Agreement and that if he or she wished to execute this Agreement prior to the expiration
of such 21-day period he or she will have done so voluntarily and with full knowledge
that he or she is waiving his or her right to have twenty-one (21) days to consider this
Agreement; and that such twenty-one (21) day period to consider this Agreement would
not and will not be re-started or extended based on any changes, whether material or
immaterial, that are or were made to this Agreement in such twenty-one (21) day period
after he or she received it;
(d) Executive was informed that he or she had seven (7) days following the
date of execution of this Agreement in which to revoke this Agreement, and this
Agreement will become null and void if Executive elects revocation during that time.
Any revocation must be in writing and must be received by the Company during the
seven-day revocation period. In the event that Executive exercises this revocation right,
neither the Company nor Executive will have any obligation under this Agreement or
under the Severance Agreement. Any notice of revocation should be sent by Executive
in writing to the Company (attention Chief Executive Officer, 0000 Xxxxxx Xxxx, Xxx
Xxxx, Xxxxxxxxxx 00000, so that it is received within the seven-day period following
execution of this Agreement by Executive.
(e) 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 for doing so,
unless specifically authorized by federal law.
4. No Transferred Claims. Executive warrants and represents that he or she has
not heretofore assigned or transferred to any person not a party to this Agreement any released
matter or any part or portion thereof.
5. Miscellaneous.
(a) Severability. In the event that any portion of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction to be
illegal, void or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such portion to other persons or circumstances will be
interpreted so as reasonable to effect the intent of the parties hereto.
(b) Governing Law. This Agreement shall be deemed to have been executed
and delivered within the State of California, and the rights and obligations of the parties
hereunder shall be construed and enforced in accordance with, and governed by, the laws
of the State of California without regard to principles of conflict of laws.
(c) Voluntary Execution of Agreement. This Agreement is executed
voluntarily by the Executive without any duress or undue influence with the full intent of
releasing all claims. The Executive acknowledges that (a) he or she has read this
Agreement; (b) he or she has had the opportunity to seek legal counsel of his or her own
Exhibit 10.35
choice; (c) he or she understands the terms and consequences of this Agreement and of
the releases it contains; and (d) he or she is fully aware of the legal and binding effect of
this Agreement.
(d) Headings; Construction. The section and paragraph headings and titles
contained in this Agreement are inserted for convenience only, and they neither form a
part of this Agreement nor are they to be used in the construction or interpretation of this
Agreement. Where the context requires, the singular shall include the plural, the plural
shall include the singular, and any gender shall include all other genders and the neutral.
Where specific language is used to clarify by example a general statement contained
herein, such specific language shall not be deemed to modify, limit or restrict in any
manner the construction of the general statement to which it relates.
I have read the foregoing Release Agreement and I accept and agree to the provisions it
contains and hereby execute it voluntarily with full understanding of its consequences.
EXECUTED this _____ day of _______________________, 201_, at _____________
County, California.
“Executive”
Xxxx Xxxxx
