**Exhibit10.11**

 

**EMPLOYMENTAGREEMENT**

 

This Employment Agreement(this **“Agreement”**)is entered into on November 24, 2003, by and between Arthur W. Zafiropoulo(the **“Executive”**)and Ultratech, Inc., a Delaware corporation (the **“Company”**) and, except asotherwise provided herein, shall become effective on January 1, 2004.

 

**WI T N E S S E T H:**

 

**WHEREAS**, the Executive is currently servingas the Company’s Chairman of the Board, Chief Executive Officer and President;

 

**WHEREAS**, the Company desires that theExecutive continue to be employed by the Company and the Executive is willingto continue to be employed by the Company; and

 

**WHEREAS**, the Company and the Executivedesire to set forth the terms and conditions of such continued employment inthis Agreement.

 

**NOW, THEREFORE**, in consideration of themutual promises and covenants contained herein, the Company and the Executiveagree as follows:

 

**1.****                                      Duties.**

 

**1.1****                               *Retentionand Board Membership***. The Company does hereby hire, engage, and employ the Executive as itsChief Executive Officer, reporting directly to the Board of Directors of theCompany (the **“Board”**), and the Executive does hereby accept and agree tosuch hiring, engagement, and employment. The Executive shall serve the Company in such positions and shall havethe duties, responsibilities and authorities consistent with such positions aswell as any other reasonable duties determined by the Board.  As long as the Executive remains employed bythe Company under this Agreement, the Company shall use its reasonable bestefforts to see that he is elected as a member of the Board and as Chairman ofthe Board.  The Executive shall serve asa member of the Board and as Chairman of the Board without any compensationother than provided hereunder for his services as Chief Executive Officer.  Upon the Executive’s termination ofemployment hereunder, he shall resign from the Board unless requested tocontinue by a majority of the other members of the Board.

 

**1.2****                               *No OtherEmployment***.  During theExecutive’s employment by the Company, the Executive shall devote substantiallyall of his business time, energy, and skill to the performance of his dutiesfor the Company.

 

**1.3****                               *No Breach ofContract.***  The Executivehereby represents to the Company that the execution and delivery of thisAgreement by the Executive and the Company and the performance by the Executiveof the Executive’s duties hereunder shall not constitute a breach of, orotherwise contravene, the terms of any employment or other agreement or policyto which the Executive is a party or otherwise bound.  The Company hereby

 

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represents to the Executive that it is authorized to enter into thisAgreement and that the execution and delivery of this Agreement to the Executiveand the employment of the Executive hereunder shall not constitute a breach of,or otherwise contravene, the terms of any law, agreement or policy by which itis bound.

 

**2.****                                      At-WillEmployment.**

 

The Executive and theCompany agree that Executive’s employment with the Company is and shall at alltimes during the Executive’s employment hereunder be “at-will” employment.  The Company may terminate the Executive’semployment at any time for any reason, with or without Cause, by providingthirty (30) days’ written notice to the Executive.  The Executive may terminate his employment with the Company byproviding thirty (30) days’ written notice to the Company.  Notwithstanding the foregoing, the Companymay relieve the Executive of his duties immediately or at any time during thethirty-day period following the written termination notice provided by theCompany or the Executive hereunder.  Noprovision of this Agreement shall be construed as conferring upon the Executivea right to continue as an employee of the Company, and the “at-will”relationship between the Executive and the Company may not be altered except asagreed by the Executive and the Company in writing.

 

**3.****                                      Compensation.**

 

**3.1****                               *Base Salary***.  The Executive’s initial Base Salary shall beat a rate of $555,000 per year, paid in accordance with the Company’s regularpayroll practices in effect from time to time, but not less frequently thanmonthly.  The Executive’s Base Salaryshall be reviewed annually and may be adjusted by the Board of Directors.  (As used in this Agreement, “**Base Salary**”shall mean Base Salary as adjusted from time to time.)

 

**3.2****                               *Annual Bonus***.  While employed hereunder, the Executiveshall be considered for an annual incentive bonus (**“Annual Bonus”**) of up to 60%of his annual Base Salary, based upon the achievement of performance objectivesestablished by the compensation committee of the Board (the **“CompensationCommittee”**).  Payment of upto 50% of the Executive’s Annual Bonus may be deferred and paid out in equalannual installments over a period of no more than three years with interest atprime as set forth in The Wall Street Journal from time to time (the **“DeferralPeriod”**), during which Deferral Period the unpaid portion of thedeferred Annual Bonus may be subject to forfeiture if the Executive terminatesemployment without Good Reason (as defined in Section 7.2.1) or isterminated by the Company for Cause (as defined in Section 6.1.1).  The Executive’s performance objectives and maximumlevel of Annual Bonus as a percentage of Base Salary, as well as the paymentterms for the Annual Bonus, shall be reviewed annually and may be adjusted bythe Compensation Committee, including, without limitation, an adjustment toincrease the maximum level of Annual Bonus as a percentage of Base Salary.

 

**3.3****                               *EquityCompensation.***

 

**3.3.1****                     *FutureGrants*. **In addition tothe stock options previously granted to the Executive, the Executive shall beeligible for periodic grants of stock options or other equity awards under theCompany’s equity award program, subject to the Executive’s continued employmenthereunder.  The terms, exercise price(if

 

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applicable), vesting period, any post-termination of employmentprovisions, and other provisions of each stock option or other equity awardgranted pursuant to this Section 3.3 shall, subject to the expressprovisions of this Agreement, be determined by the Compensation Committee atthe time of grant of the option or other equity award.

 

**3.3.2****                     *Accelerationand Extension*. **NotwithstandingSection 3.3.1, if the Executive’s employment is terminated (i) by theCompany for any reason other than for Cause (as defined in Section 6.1.1)or (ii) by the Executive with Good Reason (as defined in Section 7.2.1)or (iii) on account of death or Disability, then each stock option andother equity award granted on or after July 21, 2003 shall thereuponbecome vested as to an additional 25% of the shares of stock subject thereto(or such lesser percentage as to make the award 100% vested).  Further, in the event of a Change of Control(as defined in Section 8.1.1) or a Corporate Transaction (as defined inSection 8.1.2), all of the options or other equity awards described in thepreceding sentence shall immediately be fully vested.  To the extent that the equity awardsdescribed in this Section 3.3.2 are stock options and have become vestedby their terms or become vested as described herein, such stock options shallremain vested and exercisable at least until the date that is one year andninety (90) days after the termination of the Executive’s employment asdescribed in clauses (i), (ii), or (iii) of this Section 3.3.2 or anytermination of the Executive’s employment following a Change of Control or aCorporate Transaction (or such later date as may be specified in the awardagreement), but in no event will such options be exercisable after theexpiration of their original terms. Each of the Executive’s stock options granted prior to July 21,2003 shall be amended to add the foregoing acceleration of vesting andextension of exercise period provisions at such time, if any, that theCompany’s Board of Directors determines, in its sole discretion, that suchamendments and the related accounting charges would not adversely affect, whenrelevant, in any way, the Company’s condition (financial or otherwise),financial statements, earnings, earnings per share or other relevant Companyinformation.

 

**4.****                                      Benefits.**

 

**4.1****                               *Pension andWelfare Plans***.  While theExecutive is employed hereunder, he shall be entitled to participate in allemployee pension and welfare benefit plans and programs made available to theCompany’s senior level executives or to its employees generally, as such plansor programs may be in effect from time to time.

 

**4.2****                               *Reimbursementof Business and Other Expenses; Perquisites***

 

**4.2.1****                     *ExpenseReimbursement.**** *TheExecutive is authorized to incur reasonable expenses in carrying out his dutiesand responsibilities under this Agreement and the Company shall promptlyreimburse him for all business expenses incurred in connection with carryingout the business of the Company, subject to documentation in accordance withthe Company’s expense reporting policy.

 

**4.2.2****                     *Perquisites.***  During the Executive’s employment hereunder,the Executive shall be entitled to participate in any of the Company’sexecutive fringe benefit

 

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arrangements provided to its senior level executives generally.  In addition, effective as of July 21,2003, the Executive shall be entitled to the use of a Company car, which shallbe a Mercedes Benz SL600 or equivalent and which shall be replaced with a newMercedes Benz SL600 or equivalent no less frequently than once every threeyears.

 

**4.2.3****                     *LegalExpenses. ***The Companyshall promptly reimburse the Executive for his legal expenses, up to a maximumof $3,000, incurred in negotiating and documenting this Agreement with theCompany.

 

**4.3****                               *Vacation.***  During the Executive’s employment hereunder,the Executive shall be entitled to vacation in accordance with the Company’svacation policy for its executive officers.

 

**4.4****                               *RetireeHealth Coverage***. Effective as of July 21, 2003, and notwithstanding anythingcontained herein to the contrary, the Executive and his spouse at the date ofhis termination of employment (his **“Spouse”**) shall each be entitled to theretiree health coverage described herein for the remainder of his or her lifeif the Executive’s employment is terminated (i) for any reason on or afterDecember 31, 2005 or (ii) at any time under the followingcircumstances:  termination due to deathor physical or mental illness or injury; termination by the Company withoutCause (as defined in Section 6.1.1), termination by the Executive withGood Reason (as defined in Section 7.2.1), or termination for any reasonfollowing a Change of Control (as defined in Section 8.1.1) or a CorporateTransaction (as defined in Section 8.1.2).  The retiree health coverage provided by the Company to theExecutive and his Spouse shall be comparable to the coverage provided by theCompany to them immediately prior to the termination of the Executive’semployment until they become covered by Medicare.  Once the Executive or his Spouse becomes covered by Medicare, theCompany shall provide retiree health coverage that, together with MedicareCoverage, is comparable to the coverage that the Company provided to him or herimmediately prior to the Executive’s termination of employment.  Such retiree health coverage shall, to theextent possible, be provided through the Company’s payment of the costs of theExecutive’s and his Spouse’s continued health care coverage under theprovisions of Section 4980B of the Internal Revenue Code of 1986, asamended, and Section 10116.5 of the California Insurance Code(“COBRA”).  If COBRA coverage is notavailable or it is exhausted or no longer available, the Company shall providesuch retiree health coverage through reimbursement of premiums paid by theExecutive and/or his Spouse on a health insurance policy or policies acquiredby the Executive and/or his Spouse until age 65 and thereafter by reimbursementof the Executive and/or his Spouse of premiums paid on an insurance policy orpolicies providing Medicare supplemented coverage.  The Executive and/or his Spouse shall provide the Company withevidence that the applicable health insurance or Medicare supplemental healthinsurance policy.  If, for any reason,the retiree health coverage shall become taxable to the Executive and/or hisSpouse, the Company shall pay to the Executive and/or his Spouse an amount (a “**Gross-UpAmount**”) that is, after payment of the applicable taxes on theGross-Up Amount, equal to the amount of tax applicable to the retiree healthcoverage.

 

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**5.****                                      Deathor Disability.**

 

**5.1****                               *Definitionof Disabled and Disability***. For purposes of this Agreement, the terms “**Disabled**” and “**Disability**”shall mean the Executive’s inability, because of physical or mental illness orinjury, to perform his customary duties pursuant to this Agreement, with orwithout reasonable accommodation, and the continuation of such disabledcondition for a period of one hundred eighty (180) continuous days asdetermined by an approved medical doctor. For purposes hereof, an approved medical doctor shall mean a doctorselected by the Company and the Executive. If the Company and the Executive cannot agree on a medical doctor, eachshall select a medical doctor and the two doctors shall select a third whoshall be the approved medical doctor for this purpose.

 

**5.2****                               *TerminationDue to Death or Disability***. If the Executive dies or becomes Disabled while employed hereunder andprior to a Change of Control (as defined in Section 8.1.1) or a CorporateTransaction (as defined in Section 8.1.2), this Agreement and theExecutive’s employment shall automatically cease and terminate as of the dateof the Executive’s death or the date of Disability (which date shall bedetermined under Section 5.1 above, and referred to as the **“DisabilityDate”**), as the case may be. In the event of the termination of the Executive’s employment due to hisdeath or Disability, the Executive (or, in the event of his death, his estate)shall be entitled to receive:

 

(i)                                     alump sum cash payment, payable within ten (10) business days after the date ofdeath or the Disability Date equal to the sum of (A) any accrued butunpaid Base Salary as of the date of death or the Disability Date, (B) anyearned but unpaid portions of Annual Bonuses in respect of fiscal years completedprior to the date of death or the Disability Date, (C) any compensationdeferred under the provisions of any deferred compensation plan and(D) any unreimbursed business expenses due under Section 4.2.1 ofthis Agreement;

 

(ii)                                  amonthly payment payable in each of the twelve (12) months following thedate of the Executive’s death or Disability Date in an amount equal toone-twelfth (1/12th) of the Executive’s annual Base Salary in effectimmediately prior to his death or Disability Date;

 

(iii)                               partial acceleration ofthe vesting of a portion of the Executive’s stock options and other equityawards, and extension of time to exercise any vested stock options, as providedin Section 3.3.2;

 

(iv)                              suchemployee benefits described in Section 4.1 as the Executive or his estatemay be entitled to hereunder or under the employee benefit plans, programs andarrangements of the Company and the retiree health coverage described inSection 4.4; and

 

(v)                                 inthe case of Disability, continued use of a Company car as provided inSection 4.2.2 for a period of twelve (12) months following the Executive’sDisability Date.

 

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**6.****                                      Terminationby the Company.**

 

**6.1****                               TerminationFor Cause.**

 

**6.1.1****                     *Definitionof Termination with Cause.**** *Atermination of the Executive’s employment by the Company for cause (**“Cause”**)shall mean the termination of the Executive’s employment by the Board for anyof the reasons listed below, except in the case of the reason set forth in (i)below, only after written notice by the Board stating the reason for theproposed termination for Cause and the Executive’s failure to cure withinninety (90) days of receipt of such notice:

 

(i)                                     theExecutive’s repeated failure to perform any essential duty of his positionother than due to Disability or such illness or injury as described in anddetermined under Section 5.1 that would result in Disability if itcontinued for the period of time prescribed in Section 5.1;

 

(ii)                                  theExecutive’s commitment of an act that constitutes gross misconduct and isinjurious to the Company, any subsidiary of the Company or any successor to theCompany;

 

(iii)                               the Executive’sconviction of or pleading guilty or *nolo contendere* to any felony involvingtheft, embezzlement, dishonesty or moral turpitude;

 

(iv)                              theExecutive’s commission of an act of fraud against, or the misappropriation ofproperty belonging to, the Company, any subsidiary of the Company or anysuccessor to the Company;

 

(v)                                 theExecutive’s commitment of an act of dishonesty in connection with hisresponsibilities as an employee that is intended to result in his personalenrichment or the personal enrichment of his family or others; or

 

(vi)                              theExecutive’s material breach of this Agreement or other agreement between theExecutive and the Company or any subsidiary of or successor to the Company.

 

**6.1.2****                     *EntitlementsUpon a Termination for Cause.*** If the Executive’s employment is terminated for Cause, the terminationshall be effective on the date the Company gives the Executive written noticeof termination, except in the case of a termination for the reason described inSection 6.1.1(i), in which case the termination shall be effective on thelast day of the ninety-day cure period. In the event of the termination of the Executive’s employment hereunderdue to a termination by the Company for Cause prior to a Change of Control (asdefined in Section 8.1.1) or a Corporate Transaction (as defined inSection 8.1.2), then the Executive shall be entitled to receive:

 

(i)                                     alump sum cash payment, payable within ten (10) business days after the date oftermination of the Executive’s employment, equal to the sum of (A) anyaccrued but unpaid Base Salary as of the date of such termination, (B) anyearned and vested but unpaid portions of Annual Bonuses in

 

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respect of fiscal years completed prior to the date of suchtermination, (C) any compensation deferred under the provisions of anydeferred compensation plan, (D) any unreimbursed business expenses thatare due under Section 4.2.1 of this Agreement and (E) any unpaidvacation.

 

(ii)                                  suchemployee benefits described in Section 4.1 as the Executive or his estatemay be entitled to hereunder or under the employee benefit plans, programs andarrangements of the Company and, if such termination is on or afterDecember 31, 2005, the retiree health coverage described inSection 4.4.

 

**6.2****                               *TerminationWithout Cause***.  If theExecutive’s employment is terminated by the Company without Cause, thetermination shall be effective on the thirtieth (30th) day followingwritten notice of such termination to the Executive.  In the event of such termination without Cause prior to a Changeof Control (as defined in Section 8.1.1) or a Corporate Transaction (asdefined in Section 8.1.2), then, subject to the Executive’s execution of arelease and non-disparagement agreement in a form acceptable to the Company,the Executive shall be entitled to:

 

(i)                                     alump sum cash payment, payable within ten (10) business days after the date oftermination of the Executive’s employment, equal to the sum of (A) anyaccrued but unpaid Base Salary as of the date of such termination, (B) anyearned but unpaid portions of Annual Bonuses in respect of fiscal years completedprior to the date of such termination, (C) any compensation deferred underany deferred compensation plan and (D) any unreimbursed business expensesdue under Section 4.2.1 of this Agreement;

 

(ii)                                  amonthly severance payment payable in each of the twelve (12) monthsfollowing the date of termination of the Executive’s employment in an amountequal to one-twelfth (1/12th) of the Executive’s annual Base Salaryin effect immediately prior to such termination;

 

(iii)                               partial acceleration ofthe vesting of a portion of the Executive’s outstanding stock options and otherequity awards, and extension of time to exercise any vested stock options, asprovided in Section 3.3.2;

 

(iv)                              suchemployee benefits described in Section 4.1 as the Executive or his estatemay be entitled to hereunder or under the employee benefit plans, programs andarrangements of the Company and the retiree health coverage described inSection 4.4; and

 

(v)                                 continueduse of a Company car as provided in Section 4.2.2 for a period of twelve(12) months following the Executive’s termination of employment.

 

**7.****                                      Terminationby the Executive.**

 

**7.1****                               *TerminationWithout Good Reason***.  Ifthe Executive voluntarily terminates his employment with the Company withoutGood Reason, the termination shall be effective at the end of the thirty-daynotice period.  Upon such termination ofemployment without

 

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Good Reason prior to a Change of Control (as defined inSection 8.1.1) or a Corporate Transaction (as defined inSection 8.1.2), the Executive shall have the same entitlements as providedin Section 6.1.2 in the case of a termination by the Company for Cause.

 

**7.2****                               *TerminationWith Good Reason***.

 

**7.2.1****                     *Definitionof Good Reason***.  Forpurposes of this Agreement, **“Good Reason”** shall mean the occurrence ofany of the following events without the Executive’s written consent:

 

(i)                                     anyreduction in the aggregate level of the Executive’s Base Salary except areduction that is part of a program applicable to all of the Company’s officersto reduce expenses;

 

(ii)                                  thefailure by the Company or any subsidiary of or successor to the Company tocomply with any material terms of this Agreement or any other materialagreement between the Executive and the Company or any subsidiary of orsuccessor to the Company;

 

(iii)                               any material reductionin the nature or scope of the Executive’s duties, title, function, authority orresponsibilities (including, for example, the Executive directly reporting toanyone other than the Company’s or its successor entity’s Board of Directorsor, in the event of a Change of Control (as defined in Section 8.1.1) or aCorporate Transaction (as defined in Section 8.1.2), the Executive notbeing offered a position as the highest executive officer of the successorentity); or

 

(iv)                              arequirement that the Executive relocate his principal office to a location thatis more than sixty (60) miles from the location of his principal office onJanuary 1, 2004;

 

provided,however, that none of the events specified above shall constitute GoodReason unless the Executive shall have notified the Company in writingdescribing the events which constitute Good Reason and the Company shall havefailed to cure such event within thirty (30) days after the Company’s receiptof such written notice.

 

**7.2.2****                     *EntitlementsUpon a Termination with Good Reason.***  If the Executive terminates his employment with Good Reason, thetermination shall be effective at the end of the thirty-day cure period.  Upon such termination of his employment withGood Reason in accordance with Section 7.2.1 hereof prior to Change ofControl (as defined in Section 8.1) or a Corporate Transaction (as definedin Section 8.1.2), the Executive shall, subject to the Executive’sexecution of a release and non-disparagement agreement in a form acceptable tothe Company, have the same entitlements as provided under Section 6.2 fora termination by the Company without Cause.

 

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**8.****                                      Changeof Control Provisions.**

 

**8.1****                               Definitions**

 

**8.1.1****                     *Definitionof Change of Control***. For purposes of this Agreement, “**Change of Control**” shall mean either of thefollowing events:

 

(i)                                     anyperson or related group of persons (other than the Company or a person thatdirectly or indirectly controls, is controlled by, or is under common controlwith, the Company) directly or indirectly acquires beneficial ownership (withinthe meaning of Rule 13d-3 of the Securities Exchange Act of 1934, asamended) of securities possessing more than fifty percent (50%) of the totalcombined voting power of the Company’s outstanding securities pursuant to atender or exchange offer made directly to the Company’s stockholders; or

 

(ii)                                  thereis a change in the composition of the Board over a period of thirty-six (36)consecutive months or less such that a majority of the Board members ceases, byreason of one or more proxy contests for the election of Board members to becomprised of individuals who either (A) have been Board memberscontinuously since the beginning of such period or (B) have been electedor nominated for election as Board members during such period by at least amajority of the Board members described in clause (A) who were still in officeat the time such election or nomination was approved by the Board.

 

**8.1.2****                     *Definitionof Corporate Transaction*.** For purposes of this Agreement, “**Corporate Transaction**” shall mean any ofthe following stockholder approved transactions to which the Company is aparty:

 

(i)                                     amerger or consolidation in which the Company is not the surviving entity,except for a transaction the principal purpose of which is to change the statein which the Company is incorporated,

 

(ii)                                  thesale, transfer or other disposition of all or substantially all of the assetsof the Company in complete liquidation or dissolution of the Company, or

 

(iii)                               any reverse merger inwhich the Company is the surviving entity but in which securities possessingmore than fifty percent (50%) of the total combined voting power of theCompany’s outstanding securities are transferred to person or persons differentfrom the persons holding those securities immediately prior to such merger.

 

**8.2****                               *Effect ofChange of Control or Corporate Transaction***.  In the event of a Change of Control or aCorporate Transaction, the Executive’s stock options and equity awards shallautomatically vest in full, and the time to exercise his vested stock optionsshall be extended, to the extent provided in Section 3.3.2.  Upon the Executive’s termination ofemployment for any reason following a Change of Control, then, subject to theExecutive’s execution of a release and non-disparagement agreement in a formacceptable to the Company, the Executive shall be entitled to the following inlieu of, and not in addition to, the entitlements described in Sections 6.2 and7.2.2:

 

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(i)                                     alump sum cash payment, payable within ten (10) days after the date of thetermination of the Executive’s employment equal to the sum of (A) anyaccrued but unpaid Base Salary as of the date of such termination, (B) anyearned but unpaid portions of Annual Bonuses in respect of fiscal yearscompleted prior to the date of the termination of the Executive’s employment,(C) any compensation deferred under any deferred compensation plan and(D) any unreimbursed business expenses due under Section 4.2.1 ofthis Agreement;

 

(ii)                                  amonthly payment in each of the twenty four (24) months following the date ofthe termination of the Executive’s employment in an amount equal to one-twelfth(1/12th) of the Executive’s annual Base Salary in effect immediatelyprior to such termination (or, if greater, his annual Base Salary in effectimmediately prior to the Change of Control or Corporate Transaction);

 

(iii)                               continued use of a Companycar as provided in Section 4.2.2 for a period of twenty-four (24) monthsfollowing the Executive’s termination of employment; and

 

(iv)                              suchemployee benefits described in Section 4.1 as the Executive or his estatemay be entitled to hereunder or under any employee benefit plans, programs orarrangements of the Company and the retiree health coverage described inSection 4.4.

 

**8.3****                               *Section 280GProvisions***. Notwithstanding anything contained in this Agreement to the contrary, tothe extent that any payment or distribution of any type to or for the Executiveby the Company, or any subsidiary or affiliate of the Company, whether paid orpayable or distributed or distributable pursuant to the terms of this Agreementor otherwise (including, without limitation, any accelerated vesting of stockoptions or restricted stock granted pursuant to this Agreement or otherwise)(collectively, the “**Total Payments**”) is or will be subject tothe excise tax (“**Excise Tax**”) imposed under Section 4999 of the InternalRevenue Code of 1986, as amended (the “**Code**”), (or any successor to such Section),the Company shall pay to the Executive, at the time the Executive pays anyExcise Tax with respect to any of such Total Payments (which may be at the timethe Company withholds Excise Tax from any payments or at the time he files hisannual federal income tax return for a year in which Excise Tax is due orpayable), an additional amount (a “**Gross-Up Payment**”) which is, after theimposition of all income, employment, excise and other taxes, penalties andinterest thereon, equal to the sum of (i) the Excise Tax on such TotalPayments plus (ii) any penalty and interest assessments associated withsuch Excise Tax.  The determination ofwhether any portion of the Total Payments is subject to an Excise Tax and, ifso, the amount and time of any Gross-Up Payment pursuant to thisSection 8.3 shall be made by an independent auditor (the “**Auditor**”)jointly selected by the Executive and the Company and paid by the Company.  If the Executive and the Company cannotagree on the firm to serve as the Auditor, then they shall each select oneaccounting firm and those two firms shall jointly select the accounting firm toserve as the Auditor.  Unless the Executiveagrees otherwise in writing, the Auditor shall be a nationally recognizedUnited States public accounting firm that has not during the two yearspreceding the date of its selection, acted in any way on behalf of theCompany.  The Parties shall cooperatewith each other in connection with any proceeding or claim relating to theexistence or amount of any liability for Excise

 

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Tax.  All expenses relating toany such proceeding or claim (including attorneys’ fees and other expensesincurred by the Executive in connection therewith) shall be paid by the Companypromptly upon demand by the Executive, and any such payment shall be subject toa Gross-Up Payment under this Section 8.3 in the event that the Executiveis subject to Excise Tax on it.

 

**9.****                                      Non-Competition.**

 

The Executiveacknowledges and recognizes the highly competitive nature of the businesses ofthe Company, the amount of sensitive and confidential information involved inthe discharge of the Executive’s position as Chairman and Chief ExecutiveOfficer of the Company, and the harm to the Company****that would result if suchknowledge or expertise was disclosed or made available to a competitor, andaccordingly agrees that during the period that he is receiving any paymentsunder this Agreement, he shall not, directly or indirectly in any manner orcapacity (e.g., as an advisor, principal, agent, partner, officer, director,shareholder, employee, member of any association or otherwise) engage in, workfor, consult, provide advice or assistance or otherwise participate in anyactivity that is competitive with the business of the Company.  The Executive further agrees that duringsuch period he will not assist or encourage any other person in carrying outany activity that would be prohibited by the foregoing provisions of thisSection if such activity were carried out by the Executive and, inparticular, the Executive agrees that he will not induce any employee of theCompany to carry out any such activity; provided, however, that the“beneficial ownership” by the Executive, either individually or as a member ofa “group,” as such terms are used in Rule 13d of the General Rules andRegulations under the Exchange Act, of not more than one percent (1%) of thevoting stock of any publicly held corporation shall not be a violation of thisAgreement.  It is further expresslyagreed that the Company will or would suffer irreparable injury if theExecutive were to compete with the Company or any subsidiary or affiliate ofthe Company in violation of this Agreement and that the Company would by reasonof such competition be entitled to injunctive relief in a court of appropriatejurisdiction, and the Executive further consents and stipulates to the entry ofsuch injunctive relief in such a court prohibiting the Executive from competingwith the Company or any subsidiary or affiliate of the Company in violation ofthis Agreement.  In the event that theExecutive breaches the provisions of this Section 9, the severancebenefits under Sections 6.2, 7.2.2 or 8.2, whichever is applicable, shallimmediately terminate, the Executive shall cease to be entitled to anyadditional payments under this Agreement, and all stock options shall cease tobe exercisable.

 

**10.****                               Confidentialityand Treatment of Inventions.**

 

**10.1****                        *Confidentiality.***  The Executive will not at any time (whetherduring or after his employment with the Company), other than in the course ofhis duties hereunder or unless compelled by lawful process, disclose or use forhis own benefit or purposes or the benefit or purposes of any other person,firm, partnership, joint venture, association, corporation or other businessorganization, entity or enterprise other than an entity within the Company or asubsidiary or affiliate of the Company, any trade secrets, or otherconfidential data or information relating to customers, development programs,costs, marketing, trading, investment, sales activities, promotion, credit andfinancial data, financing methods, or plans of any entity within the Company orany subsidiary or

 

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affiliate of the Company; provided that the foregoing shall notapply to information that is generally known to the industry or the publicother than as a result of the Executive’s breach of this covenant.  The Executive agrees that upon terminationof his employment with the Company for any reason, he will return to theCompany immediately all memoranda, books, papers, software, plans, information,letters and other data, and all copies thereof or therefrom, in any wayrelating to the business of any entity within the Company or any subsidiary oraffiliate of the Company, except that he may retain personal notes, notebooksand diaries that do not contain confidential information of the type describedin the preceding sentence.  TheExecutive further agrees that he will not retain or use for his account at anytime any trade names, trademark or other proprietary business designation usedor owned in connection with the business of any entity within the Company orany subsidiary or affiliate of the Company.

 

**10.2****                        *Treatment ofInventions.***

 

**10.2.1****              *PriorInventions***.  TheExecutive understands and acknowledges that he does not have any right or claimto any invention, idea, process, formula, discovery, technical information,trade secret, design, computer program, proprietary information, copyright,patent or other such item or matter (together, any “**Invention**”), includingwithout limitation any Invention made prior to his employment with theCompany.  The Executive furtherunderstands and acknowledges that he has had the opportunity to disclose anyInvention to the Company, and has voluntarily and knowingly waived and declinedsuch opportunity because he has no Invention to disclose.

 

**10.2.2****              *Subsequent InventionDisclosure***.  TheExecutive hereby agrees to disclose to the Company in a prompt manner anyInvention that he develops at any time prior to the six-month anniversary ofhis termination of employment with the Company.

 

**10.2.3****              *Assignmentof Inventions***.  Except asotherwise provided by Section 10.2.4, the Executive hereby assigns andagrees to assign to the Company or its designee the Executive’s entire right,title, and interest in and to any Invention that the Executive, whether solelyor jointly, develops prior to the six-month anniversary of his termination ofemployment with the Company, with the use of time, material, equipment,supplies, facilities or trade secret information of the Company or anysubsidiary or affiliate of the Company, whether or not during workinghours.  The Executive further agrees tocooperate with the Company and to perform all acts deemed necessary ordesirable by the Company to permit and to assist the Company, at the Company’sexpense, in obtaining and enforcing the full benefits, enjoyment, rights andtitle (whether domestic or foreign) to any Invention hereby assigned by theExecutive to the Company.

 

**10.2.4****              *Inventionsnot Assigned***. Section 10.2.3 shall not apply to an Invention that the Executivedeveloped entirely on his own time without using the Company’s or any of itssubsidiaries’ or affiliates’ time, material, equipment, supplies, facilities ortrade secret information, except for any Invention that either (i) relatesat the time of conception or reduction to practice of the Invention to

 

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the Company’s or a subsidiary’s or affiliate’s business, or actual ordemonstrably anticipated research development of the Company or a subsidiary oraffiliate of the Company or (ii) results from the Executive’s work withthe Company or a subsidiary or affiliate of the Company, whether or not duringnormal working hours.

 

**11.****                               Antisolicitation.**

 

The Executive promisesand agrees that, for a period of twelve (12) months following his terminationof employment, he will not influence or attempt to influence suppliers orcustomers of the Company hereunder, either directly or indirectly, to diverttheir business away from the Company to any individual, partnership, firm,corporation or other entity then in competition with the Company or anysubsidiary of successor to the Company.

 

**12.****                               SolicitingEmployees.**

 

The Executive promisesand agrees that, for a period of twelve (12) months following termination ofhis employment hereunder, he will not directly or indirectly solicit any personwho is then, or at any time within six months prior thereto was, an employee ofthe Company to leave the employ of the Company to work for any business,individual, partnership, firm, corporation, or other entity then in competitionwith the business of the Company or any subsidiary of or successor to theCompany.

 

**13.****                               Cooperationin Litigation.**

 

The Executive agrees thathe will reasonably cooperate with the Company in any litigation that arises outof events occurring prior to the termination of his employment, including butnot limited to, serving as a witness or consultant and producing documents andinformation relevant to the case or helpful to the Company.  The Company agrees to reimburse theExecutive for all reasonable costs and expenses he incurs in connection withhis obligations under this Section 13.

 

**14.****                               Indemnification. **Indemnification shall be provided to theExecutive as set forth in the indemnification agreement entered into betweenthe Company and the Executive prior to the date hereof and/or any subsequentindemnification agreement between the Company and the Executive (the “**IndemnificationAgreement**”).

 

**15.****                               Assignment.**

 

This Agreement ispersonal in its nature and neither of the parties hereto shall, without theconsent of the other, assign or transfer this Agreement or any rights orobligations hereunder; provided, however, that, in the event of amerger, consolidation, or transfer or sale of all or substantially all of theassets of the Company with or to any other individual(s) or entity, thisAgreement shall, subject to the provisions hereof, be binding upon and inure tothe benefit of such successor and such successor shall discharge and performall the promises, covenants, duties, and obligations of the Company hereunder,and; provided, further, that the Executive may assign his rightsto compensation and benefits by will or by operation of law or pursuant toSection 27.

 

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**16.****                               GoverningLaw.**

 

This Agreement and thelegal relations hereby created between the parties hereto shall be governed byand construed under and in accordance with the internal laws of the State ofCalifornia, without regard to conflicts of laws principles thereof, except asprovided in Section 14.

 

**17.****                               EntireAgreement.**

 

This Agreement and theIndemnification Agreement represent the entire agreement of the parties heretorespecting the matters within the scope of this Agreement and theIndemnification Agreement and supersede all prior agreements of the partieshereto on the subject matter hereof. Any prior negotiations, correspondence, other agreements, proposals orunderstandings relating to the subject matter hereof shall he deemed to bemerged into this Agreement and to the extent inconsistent herewith, suchnegotiations, correspondence, agreements, proposals, or understandings shall bedeemed to be of no force or effect. There are no representations, warranties, or agreements, whether expressor implied, or oral or written, with respect to the subject matter hereof,except as set forth herein.

 

**18.****                               Modifications.**

 

This Agreement shall notbe modified by any oral agreement, either express or implied, and allmodifications hereof shall be in writing and signed by the parties hereto.

 

**19.****                               Waiver.**

 

Failure to insist uponstrict compliance with any of the terms, covenants, or conditions hereof shallnot be deemed a waiver of such term, covenant, or condition, nor shall anywaiver or relinquishment of, or failure to insist upon strict compliance with,any right or power hereunder at any one or more times be deemed a waiver orrelinquishment of such right or power at any other time or times.

 

**20.****                               Numberand Gender.**

 

Where the contextrequires, the singular shall include the plural, the plural shall include thesingular, and any gender shall include all other genders.

 

**21.****                               Section Headings.**

 

The section headingsin this Agreement are for the purpose of convenience only and shall not limitor otherwise affect any of the terms hereof.

 

**22.****                               Resolutionof Disputes.**

 

Any controversy or claimarising out of or relating to the Executive’s employment, this Agreement, itsenforcement, arbitrability, or interpretation, or because of an alleged breach,default, or misrepresentation in connection with any of its provisions, shallbe submitted to arbitration in Santa Clara County, California, before a singlearbitrator, in accordance with the National Rules for the Resolution ofEmployment Disputes then in

 

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effect of the AmericanArbitration Association (“**AAA**”) as modified by the terms andconditions of this Section 22; provided, however, thatprovisional injunctive relief may, but need not, be sought in a court of lawwhile arbitration proceedings are pending, and any provisional injunctiverelief granted by such court shall remain effective until the matter is finallydetermined by the arbitrator.  Thearbitrator shall be selected by mutual agreement of the parties or, if theparties cannot agree, by striking from a list of arbitrators supplied byAAA.  The arbitrator shall issue awritten opinion revealing, however briefly, the essential findings andconclusions upon which the award is based. Final resolution of any dispute through arbitration may include anyremedy or relief which the arbitrator deems just and equitable.  Any award or relief granted by thearbitrator hereunder shall be final and binding on the parties hereto and maybe enforced by any court of competent jurisdiction.

 

The parties acknowledgethat they are hereby waiving any rights to trial by jury in any action,proceeding or counterclaim brought by either of the parties against the otherin connection with any matter whatsoever arising out of or in any way connectedwith this Agreement or the Executive’s employment.

 

The Company shall pay thearbitrator’s fees and arbitration expenses and any other costs associated withthe arbitration or arbitration hearing that are unique to artibration.  The Company and the Executive each shallseparately pay its or his own deposition, witness, expert and attorneys’ feesand other expenses as and to the same extent as if the matter were being heldin court unless otherwise provided by law; provided, however,that if the Executive prevails, the arbitrator may award the Executivereasonable attorneys’ fees.  Thearbitrator shall resolve any dispute as to reasonableness of any fee orcost.  The arbitrator shall have thesole and exclusive power and authority to decide any and all issues of orrelated to arbitrability.

 

**23.****                               Severability.**

 

In the event that a courtof competent jurisdiction determines that any portion of this Agreement is inviolation of any statute or public policy, then only the portions of thisAgreement which violate such statute or public policy shall be stricken, andall portions of this Agreement which do not violate any statute or publicpolicy shall continue in full force and effect.  Furthermore, any court order striking any portion of thisAgreement shall modify the stricken terms as narrowly as possible to give asmuch effect as possible to the intentions of the parties under this Agreement.

 

**24.****                               Notices.**

 

All notices under thisAgreement shall be in writing and shall be either personally delivered ormailed postage prepaid, by certified mail, return receipt requested:

 

(i)                                     ifto the Company:

 

Ultratech, Inc.

3050 Zanker Road

San Jose, California  95134

Attention: Chair,Compensation Committee of the Board of Directors

 

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(ii)                                  ifto the Executive:

 

Arthur W. Zafiropoulo

148 Austin Avenue

Atherton, CA 94027

 

Either party may changeits address set forth above by written notice given to the other party inaccordance with the foregoing.  Anynotice shall be effective when personally delivered, or five (5) business daysafter being mailed in accordance with the foregoing.

 

**25.****                               Counterparts.**

 

This Agreement may beexecuted in any number of counterparts, each of which shall be deemed anoriginal and all of which together shall constitute one and the sameinstrument.

 

**26.****                               WithholdingTaxes.**

 

The Company may withholdfrom any amounts payable under this Agreement such federal, state and localincome, employment, or other taxes as may be required to be withheld pursuantto any applicable law or regulation.

 

**27.****                               Beneficiaries.**

 

The Executive shall beentitled, to the extent permitted under any applicable law and to the extentpermitted under any benefit plan or program maintained by the Company, toselect and change a beneficiary or beneficiaries to receive any compensation orbenefit hereunder following the Executive’s death by giving the Company writtennotice thereof in accordance with the terms of such plan or program.  In the event of the Executive’s death or ajudicial determination of his incompetence, reference in this Agreement to theExecutive shall be deemed, where appropriate, to refer to his beneficiary,estate or other legal representative.

 

**28.****                               Director’sand Officer’s Insurance**.

 

The Company shall providedirector’s and officer’s insurance coverage for the Executive to the extentthat the Company provides such coverage for its other senior executiveofficers.

 

**29.****                               NoMitigation or Offset.**

 

In theevent of any termination of employment under this Agreement, the Executiveshall be under no obligation to seek other employment and there shall be nooffset against amounts due the Executive under this Agreement on account of anyremuneration attributable to any subsequent employment that he may obtainexcept on account of any claims the Company may have against the Executive.

 

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**30.****                               Rightto Advice of Counsel.**

 

The Executiveacknowledges that he has had the right to consult with counsel and is fullyaware of his rights and obligations under this Agreement.  O’Melveny & Myers, LLP has served as theCompany’s counsel with respect to this Agreement.

 

**31.****                               Survival.**

 

Uponthe termination of this Agreement, the provisions of Sections 4.4, 5, 6, 7, 8,9, 10, 11, 12, 13, 14, 16, 22, 23, 24, 26, 28 and 29 shall survive.

 

**IN WITNESS WHEREOF**, the Company and theExecutive have executed this Employment Agreement as of the date first abovewritten.

 
|   | **THE COMPANY**            |
|--------|----------------------------|
|   |                       |
|   | **Ultratech, Inc.,**       |
|   | a Delaware corporation     |
|   |                       |
|   | By:                        | /s/ Nicholas Konidaris |   |
|   |                       | Nicholas Konidaris |
|   |                       | Chairman, Compensation  Committee of the  Board of Directors |
|   |                       |
|   |                       |
|   | **THE EXECUTIVE**          |
|   |                       |
|   | /s/ Arthur W.  Zafiropoulo |   |
|   | Arthur W. Zafiropoulo      |
|        |                            |  |  |  |

 

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