Exhibit
10.11


 


EMPLOYMENT
AGREEMENT


 


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 as
otherwise provided herein, shall become effective on January 1, 2004.


 


W
I T N E S S E T H:


 


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


 


WHEREAS, the Company desires that the
Executive continue to be employed by the Company and the Executive is willing
to continue to be employed by the Company; and


 


WHEREAS, the Company and the Executive
desire to set forth the terms and conditions of such continued employment in
this Agreement.


 


NOW, THEREFORE, in consideration of the
mutual promises and covenants contained herein, the Company and the Executive
agree as follows:


 


1.                                      Duties.


 


1.1                               Retention
and Board Membership. 
The Company does hereby hire, engage, and employ the Executive as its
Chief Executive Officer, reporting directly to the Board of Directors of the
Company (the “Board”), and the Executive does hereby accept and agree to
such hiring, engagement, and employment. 
The Executive shall serve the Company in such positions and shall have
the duties, responsibilities and authorities consistent with such positions as
well as any other reasonable duties determined by the Board.  As long as the Executive remains employed by
the Company under this Agreement, the Company shall use its reasonable best
efforts to see that he is elected as a member of the Board and as Chairman of
the Board.  The Executive shall serve as
a member of the Board and as Chairman of the Board without any compensation
other than provided hereunder for his services as Chief Executive Officer.  Upon the Executive’s termination of
employment hereunder, he shall resign from the Board unless requested to
continue by a majority of the other members of the Board.


 


1.2                               No Other
Employment.  During the
Executive’s employment by the Company, the Executive shall devote substantially
all of his business time, energy, and skill to the performance of his duties
for the Company.


 


1.3                               No Breach of
Contract.  The Executive
hereby represents to the Company that the execution and delivery of this
Agreement by the Executive and the Company and the performance by the Executive
of the Executive’s duties hereunder shall not constitute a breach of, or
otherwise contravene, the terms of any employment or other agreement or policy
to 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 this
Agreement and that the execution and delivery of this Agreement to the Executive
and 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 it
is bound.


 


2.                                      At-Will
Employment.


 


The Executive and the
Company agree that Executive’s employment with the Company is and shall at all
times during the Executive’s employment hereunder be “at-will” employment.  The Company may terminate the Executive’s
employment at any time for any reason, with or without Cause, by providing
thirty (30) days’ written notice to the Executive.  The Executive may terminate his employment with the Company by
providing thirty (30) days’ written notice to the Company.  Notwithstanding the foregoing, the Company
may relieve the Executive of his duties immediately or at any time during the
thirty-day period following the written termination notice provided by the
Company or the Executive hereunder.  No
provision of this Agreement shall be construed as conferring upon the Executive
a 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 as
agreed by the Executive and the Company in writing.


 


3.                                      Compensation.


 


3.1                               Base Salary.  The Executive’s initial Base Salary shall be
at a rate of $555,000 per year, paid in accordance with the Company’s regular
payroll practices in effect from time to time, but not less frequently than
monthly.  The Executive’s Base Salary
shall 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 Executive
shall be considered for an annual incentive bonus (“Annual Bonus”) of up to 60%
of his annual Base Salary, based upon the achievement of performance objectives
established by the compensation committee of the Board (the “Compensation
Committee”).  Payment of up
to 50% of the Executive’s Annual Bonus may be deferred and paid out in equal
annual installments over a period of no more than three years with interest at
prime as set forth in The Wall Street Journal from time to time (the “Deferral
Period”), during which Deferral Period the unpaid portion of the
deferred Annual Bonus may be subject to forfeiture if the Executive terminates
employment without Good Reason (as defined in Section 7.2.1) or is
terminated by the Company for Cause (as defined in Section 6.1.1).  The Executive’s performance objectives and maximum
level of Annual Bonus as a percentage of Base Salary, as well as the payment
terms for the Annual Bonus, shall be reviewed annually and may be adjusted by
the Compensation Committee, including, without limitation, an adjustment to
increase the maximum level of Annual Bonus as a percentage of Base Salary.


 


3.3                               Equity
Compensation.


 


3.3.1                     Future
Grants.  In addition to
the stock options previously granted to the Executive, the Executive shall be
eligible for periodic grants of stock options or other equity awards under the
Company’s equity award program, subject to the Executive’s continued employment
hereunder.  The terms, exercise price
(if


 


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


 


3.3.2                     Acceleration
and Extension.  Notwithstanding
Section 3.3.1, if the Executive’s employment is terminated (i) by the
Company 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 and
other equity award granted on or after July 21, 2003 shall thereupon
become 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 in
Section 8.1.2), all of the options or other equity awards described in the
preceding sentence shall immediately be fully vested.  To the extent that the equity awards
described in this Section 3.3.2 are stock options and have become vested
by their terms or become vested as described herein, such stock options shall
remain vested and exercisable at least until the date that is one year and
ninety (90) days after the termination of the Executive’s employment as
described in clauses (i), (ii), or (iii) of this Section 3.3.2 or any
termination of the Executive’s employment following a Change of Control or a
Corporate Transaction (or such later date as may be specified in the award
agreement), but in no event will such options be exercisable after the
expiration 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 and
extension of exercise period provisions at such time, if any, that the
Company’s Board of Directors determines, in its sole discretion, that such
amendments and the related accounting charges would not adversely affect, when
relevant, in any way, the Company’s condition (financial or otherwise),
financial statements, earnings, earnings per share or other relevant Company
information.


 


4.                                      Benefits.


 


4.1                               Pension and
Welfare Plans.  While the
Executive is employed hereunder, he shall be entitled to participate in all
employee pension and welfare benefit plans and programs made available to the
Company’s senior level executives or to its employees generally, as such plans
or programs may be in effect from time to time.


 


4.2                               Reimbursement
of Business and Other Expenses; Perquisites


 


4.2.1                     Expense
Reimbursement.  The
Executive is authorized to incur reasonable expenses in carrying out his duties
and responsibilities under this Agreement and the Company shall promptly
reimburse him for all business expenses incurred in connection with carrying
out the business of the Company, subject to documentation in accordance with
the 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’s
executive 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 shall
be a Mercedes Benz SL600 or equivalent and which shall be replaced with a new
Mercedes Benz SL600 or equivalent no less frequently than once every three
years.


 


4.2.3                     Legal
Expenses.  The Company
shall promptly reimburse the Executive for his legal expenses, up to a maximum
of $3,000, incurred in negotiating and documenting this Agreement with the
Company.


 


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


 


4.4                               Retiree
Health Coverage. 
Effective as of July 21, 2003, and notwithstanding anything
contained herein to the contrary, the Executive and his spouse at the date of
his termination of employment (his “Spouse”) shall each be entitled to the
retiree health coverage described herein for the remainder of his or her life
if the Executive’s employment is terminated (i) for any reason on or after
December 31, 2005 or (ii) at any time under the following
circumstances:  termination due to death
or physical or mental illness or injury; termination by the Company without
Cause (as defined in Section 6.1.1), termination by the Executive with
Good Reason (as defined in Section 7.2.1), or termination for any reason
following a Change of Control (as defined in Section 8.1.1) or a Corporate
Transaction (as defined in Section 8.1.2).  The retiree health coverage provided by the Company to the
Executive and his Spouse shall be comparable to the coverage provided by the
Company to them immediately prior to the termination of the Executive’s
employment until they become covered by Medicare.  Once the Executive or his Spouse becomes covered by Medicare, the
Company shall provide retiree health coverage that, together with Medicare
Coverage, is comparable to the coverage that the Company provided to him or her
immediately prior to the Executive’s termination of employment.  Such retiree health coverage shall, to the
extent possible, be provided through the Company’s payment of the costs of the
Executive’s and his Spouse’s continued health care coverage under the
provisions of Section 4980B of the Internal Revenue Code of 1986, as
amended, and Section 10116.5 of the California Insurance Code
(“COBRA”).  If COBRA coverage is not
available or it is exhausted or no longer available, the Company shall provide
such retiree health coverage through reimbursement of premiums paid by the
Executive and/or his Spouse on a health insurance policy or policies acquired
by the Executive and/or his Spouse until age 65 and thereafter by reimbursement
of the Executive and/or his Spouse of premiums paid on an insurance policy or
policies providing Medicare supplemented coverage.  The Executive and/or his Spouse shall provide the Company with
evidence that the applicable health insurance or Medicare supplemental health
insurance policy.  If, for any reason,
the retiree health coverage shall become taxable to the Executive and/or his
Spouse, the Company shall pay to the Executive and/or his Spouse an amount (a “Gross-Up
Amount”) that is, after payment of the applicable taxes on the
Gross-Up Amount, equal to the amount of tax applicable to the retiree health
coverage.


 


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5.                                      Death
or Disability.


 


5.1                               Definition
of 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 or
injury, to perform his customary duties pursuant to this Agreement, with or
without reasonable accommodation, and the continuation of such disabled
condition for a period of one hundred eighty (180) continuous days as
determined by an approved medical doctor. 
For purposes hereof, an approved medical doctor shall mean a doctor
selected by the Company and the Executive. 
If the Company and the Executive cannot agree on a medical doctor, each
shall select a medical doctor and the two doctors shall select a third who
shall be the approved medical doctor for this purpose.


 


5.2                               Termination
Due to Death or Disability. 
If the Executive dies or becomes Disabled while employed hereunder and
prior to a Change of Control (as defined in Section 8.1.1) or a Corporate
Transaction (as defined in Section 8.1.2), this Agreement and the
Executive’s employment shall automatically cease and terminate as of the date
of the Executive’s death or the date of Disability (which date shall be
determined under Section 5.1 above, and referred to as the “Disability
Date”), as the case may be. 
In the event of the termination of the Executive’s employment due to his
death or Disability, the Executive (or, in the event of his death, his estate)
shall be entitled to receive:


 


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


 


(ii)                                  a
monthly payment payable in each of the twelve (12) months following the
date of the Executive’s death or Disability Date in an amount equal to
one-twelfth (1/12th) of the Executive’s annual Base Salary in effect
immediately prior to his death or Disability Date;


 


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


 


(iv)                              such
employee benefits described in Section 4.1 as the Executive or his estate
may be entitled to hereunder or under the employee benefit plans, programs and
arrangements of the Company and the retiree health coverage described in
Section 4.4; and


 


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


 


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6.                                      Termination
by the Company.


 


6.1                               Termination
For Cause.


 


6.1.1                     Definition
of Termination with Cause.  A
termination of the Executive’s employment by the Company for cause (“Cause”)
shall mean the termination of the Executive’s employment by the Board for any
of 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 the
proposed termination for Cause and the Executive’s failure to cure within
ninety (90) days of receipt of such notice:


 


(i)                                     the
Executive’s repeated failure to perform any essential duty of his position
other than due to Disability or such illness or injury as described in and
determined under Section 5.1 that would result in Disability if it
continued for the period of time prescribed in Section 5.1;


 


(ii)                                  the
Executive’s 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)                               the Executive’s
conviction of or pleading guilty or nolo contendere to any felony involving
theft, embezzlement, dishonesty or moral turpitude;


 


(iv)                              the
Executive’s 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)                                 the
Executive’s commitment of an act of dishonesty in connection with his
responsibilities as an employee that is intended to result in his personal
enrichment or the personal enrichment of his family or others; or


 


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


 


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


 


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


 


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respect of fiscal years completed prior to the date of such
termination, (C) any compensation deferred under the provisions of any
deferred compensation plan, (D) any unreimbursed business expenses that
are due under Section 4.2.1 of this Agreement and (E) any unpaid
vacation.


 


(ii)                                  such
employee benefits described in Section 4.1 as the Executive or his estate
may be entitled to hereunder or under the employee benefit plans, programs and
arrangements of the Company and, if such termination is on or after
December 31, 2005, the retiree health coverage described in
Section 4.4.


 


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


 


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


 


(ii)                                  a
monthly severance payment payable in each of the twelve (12) months
following the date of termination of the Executive’s employment in an amount
equal to one-twelfth (1/12th) of the Executive’s annual Base Salary
in effect immediately prior to such termination;


 


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


 


(iv)                              such
employee benefits described in Section 4.1 as the Executive or his estate
may be entitled to hereunder or under the employee benefit plans, programs and
arrangements of the Company and the retiree health coverage described in
Section 4.4; and


 


(v)                                 continued
use 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.                                      Termination
by the Executive.


 


7.1                               Termination
Without Good Reason.  If
the Executive voluntarily terminates his employment with the Company without
Good Reason, the termination shall be effective at the end of the thirty-day
notice period.  Upon such termination of
employment without


 


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


 


7.2                               Termination
With Good Reason.


 


7.2.1                     Definition
of Good Reason.  For
purposes of this Agreement, “Good Reason” shall mean the occurrence of
any of the following events without the Executive’s written consent:


 


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


 


(ii)                                  the
failure by the Company or any subsidiary of or successor to the Company to
comply with any material terms of this Agreement or any other material
agreement between the Executive and the Company or any subsidiary of or
successor to the Company;


 


(iii)                               any material reduction
in the nature or scope of the Executive’s duties, title, function, authority or
responsibilities (including, for example, the Executive directly reporting to
anyone other than the Company’s or its successor entity’s Board of Directors
or, in the event of a Change of Control (as defined in Section 8.1.1) or a
Corporate Transaction (as defined in Section 8.1.2), the Executive not
being offered a position as the highest executive officer of the successor
entity); or


 


(iv)                              a
requirement that the Executive relocate his principal office to a location that
is more than sixty (60) miles from the location of his principal office on
January 1, 2004;


 


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


 


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


 


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8.                                      Change
of Control Provisions.


 


8.1                               Definitions


 


8.1.1                     Definition
of Change of Control. 
For purposes of this Agreement, “Change of Control” shall mean either of the
following events:


 


(i)                                     any
person or related group of persons (other than the Company or a person that
directly or indirectly controls, is controlled by, or is under common control
with, the Company) directly or indirectly acquires beneficial ownership (within
the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as
amended) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Company’s outstanding securities pursuant to a
tender or exchange offer made directly to the Company’s stockholders; or


 


(ii)                                  there
is 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, by
reason of one or more proxy contests for the election of Board members to be
comprised of individuals who either (A) have been Board members
continuously since the beginning of such period or (B) have been elected
or nominated for election as Board members during such period by at least a
majority of the Board members described in clause (A) who were still in office
at the time such election or nomination was approved by the Board.


 


8.1.2                     Definition
of Corporate Transaction. 
For purposes of this Agreement, “Corporate Transaction” shall mean any of
the following stockholder approved transactions to which the Company is a
party:


 


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


 


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


 


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


 


8.2                               Effect of
Change of Control or Corporate Transaction.  In the event of a Change of Control or a
Corporate Transaction, the Executive’s stock options and equity awards shall
automatically vest in full, and the time to exercise his vested stock options
shall be extended, to the extent provided in Section 3.3.2.  Upon the Executive’s termination of
employment for any reason following a Change of Control, then, subject to the
Executive’s execution of a release and non-disparagement agreement in a form
acceptable to the Company, the Executive shall be entitled to the following in
lieu of, and not in addition to, the entitlements described in Sections 6.2 and
7.2.2:


 


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(i)                                     a
lump sum cash payment, payable within ten (10) days after the date of the
termination of the Executive’s employment equal to the sum of (A) any
accrued but unpaid Base Salary as of the date of such termination, (B) any
earned but unpaid portions of Annual Bonuses in respect of fiscal years
completed 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 of
this Agreement;


 


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


 


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


 


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


 


8.3                               Section 280G
Provisions. 
Notwithstanding anything contained in this Agreement to the contrary, to
the extent that any payment or distribution of any type to or for the Executive
by the Company, or any subsidiary or affiliate of the Company, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (including, without limitation, any accelerated vesting of stock
options or restricted stock granted pursuant to this Agreement or otherwise)
(collectively, the “Total Payments”) is or will be subject to
the excise tax (“Excise Tax”) imposed under Section 4999 of the Internal
Revenue 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 any
Excise Tax with respect to any of such Total Payments (which may be at the time
the Company withholds Excise Tax from any payments or at the time he files his
annual federal income tax return for a year in which Excise Tax is due or
payable), an additional amount (a “Gross-Up Payment”) which is, after the
imposition of all income, employment, excise and other taxes, penalties and
interest thereon, equal to the sum of (i) the Excise Tax on such Total
Payments plus (ii) any penalty and interest assessments associated with
such Excise Tax.  The determination of
whether any portion of the Total Payments is subject to an Excise Tax and, if
so, the amount and time of any Gross-Up Payment pursuant to this
Section 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 cannot
agree on the firm to serve as the Auditor, then they shall each select one
accounting firm and those two firms shall jointly select the accounting firm to
serve as the Auditor.  Unless the Executive
agrees otherwise in writing, the Auditor shall be a nationally recognized
United States public accounting firm that has not during the two years
preceding the date of its selection, acted in any way on behalf of the
Company.  The Parties shall cooperate
with each other in connection with any proceeding or claim relating to the
existence or amount of any liability for Excise


 


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


 


9.                                      Non-Competition.


 


The Executive
acknowledges and recognizes the highly competitive nature of the businesses of
the Company, the amount of sensitive and confidential information involved in
the discharge of the Executive’s position as Chairman and Chief Executive
Officer of the Company, and the harm to the Company  that would result if such
knowledge or expertise was disclosed or made available to a competitor, and
accordingly agrees that during the period that he is receiving any payments
under this Agreement, he shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage in, work
for, consult, provide advice or assistance or otherwise participate in any
activity that is competitive with the business of the Company.  The Executive further agrees that during
such period he will not assist or encourage any other person in carrying out
any activity that would be prohibited by the foregoing provisions of this
Section if such activity were carried out by the Executive and, in
particular, the Executive agrees that he will not induce any employee of the
Company to carry out any such activity; provided, however, that the
“beneficial ownership” by the Executive, either individually or as a member of
a “group,” as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than one percent (1%) of the
voting stock of any publicly held corporation shall not be a violation of this
Agreement.  It is further expressly
agreed that the Company will or would suffer irreparable injury if the
Executive were to compete with the Company or any subsidiary or affiliate of
the Company in violation of this Agreement and that the Company would by reason
of such competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and the Executive further consents and stipulates to the entry of
such injunctive relief in such a court prohibiting the Executive from competing
with the Company or any subsidiary or affiliate of the Company in violation of
this Agreement.  In the event that the
Executive breaches the provisions of this Section 9, the severance
benefits under Sections 6.2, 7.2.2 or 8.2, whichever is applicable, shall
immediately terminate, the Executive shall cease to be entitled to any
additional payments under this Agreement, and all stock options shall cease to
be exercisable.


 


10.                               Confidentiality
and Treatment of Inventions.


 


10.1                        Confidentiality.  The Executive will not at any time (whether
during or after his employment with the Company), other than in the course of
his duties hereunder or unless compelled by lawful process, disclose or use for
his own benefit or purposes or the benefit or purposes of any other person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than an entity within the Company or a
subsidiary or affiliate of the Company, any trade secrets, or other
confidential data or information relating to customers, development programs,
costs, marketing, trading, investment, sales activities, promotion, credit and
financial data, financing methods, or plans of any entity within the Company or
any subsidiary or


 


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affiliate of the Company; provided that the foregoing shall not
apply to information that is generally known to the industry or the public
other than as a result of the Executive’s breach of this covenant.  The Executive agrees that upon termination
of his employment with the Company for any reason, he will return to the
Company immediately all memoranda, books, papers, software, plans, information,
letters and other data, and all copies thereof or therefrom, in any way
relating to the business of any entity within the Company or any subsidiary or
affiliate of the Company, except that he may retain personal notes, notebooks
and diaries that do not contain confidential information of the type described
in the preceding sentence.  The
Executive further agrees that he will not retain or use for his account at any
time any trade names, trademark or other proprietary business designation used
or owned in connection with the business of any entity within the Company or
any subsidiary or affiliate of the Company.


 


10.2                        Treatment of
Inventions.


 


10.2.1              Prior
Inventions.  The
Executive understands and acknowledges that he does not have any right or claim
to 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”), including
without limitation any Invention made prior to his employment with the
Company.  The Executive further
understands and acknowledges that he has had the opportunity to disclose any
Invention to the Company, and has voluntarily and knowingly waived and declined
such opportunity because he has no Invention to disclose.


 


10.2.2              Subsequent Invention
Disclosure.  The
Executive hereby agrees to disclose to the Company in a prompt manner any
Invention that he develops at any time prior to the six-month anniversary of
his termination of employment with the Company.


 


10.2.3              Assignment
of Inventions.  Except as
otherwise provided by Section 10.2.4, the Executive hereby assigns and
agrees 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 solely
or jointly, develops prior to the six-month anniversary of his termination of
employment with the Company, with the use of time, material, equipment,
supplies, facilities or trade secret information of the Company or any
subsidiary or affiliate of the Company, whether or not during working
hours.  The Executive further agrees to
cooperate with the Company and to perform all acts deemed necessary or
desirable by the Company to permit and to assist the Company, at the Company’s
expense, in obtaining and enforcing the full benefits, enjoyment, rights and
title (whether domestic or foreign) to any Invention hereby assigned by the
Executive to the Company.


 


10.2.4              Inventions
not Assigned. 
Section 10.2.3 shall not apply to an Invention that the Executive
developed entirely on his own time without using the Company’s or any of its
subsidiaries’ or affiliates’ time, material, equipment, supplies, facilities or
trade secret information, except for any Invention that either (i) relates
at 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 or
demonstrably anticipated research development of the Company or a subsidiary or
affiliate of the Company or (ii) results from the Executive’s work with
the Company or a subsidiary or affiliate of the Company, whether or not during
normal working hours.


 


11.                               Antisolicitation.


 


The Executive promises
and agrees that, for a period of twelve (12) months following his termination
of employment, he will not influence or attempt to influence suppliers or
customers of the Company hereunder, either directly or indirectly, to divert
their business away from the Company to any individual, partnership, firm,
corporation or other entity then in competition with the Company or any
subsidiary of successor to the Company.


 


12.                               Soliciting
Employees.


 


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


 


13.                               Cooperation
in Litigation.


 


The Executive agrees that
he will reasonably cooperate with the Company in any litigation that arises out
of events occurring prior to the termination of his employment, including but
not limited to, serving as a witness or consultant and producing documents and
information relevant to the case or helpful to the Company.  The Company agrees to reimburse the
Executive for all reasonable costs and expenses he incurs in connection with
his obligations under this Section 13.


 


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


 


15.                               Assignment.


 


This Agreement is
personal in its nature and neither of the parties hereto shall, without the
consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder; provided, however, that, in the event of a
merger, consolidation, or transfer or sale of all or substantially all of the
assets of the Company with or to any other individual(s) or entity, this
Agreement shall, subject to the provisions hereof, be binding upon and inure to
the benefit of such successor and such successor shall discharge and perform
all the promises, covenants, duties, and obligations of the Company hereunder,
and; provided, further, that the Executive may assign his rights
to compensation and benefits by will or by operation of law or pursuant to
Section 27.


 


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16.                               Governing
Law.


 


This Agreement and the
legal relations hereby created between the parties hereto shall be governed by
and construed under and in accordance with the internal laws of the State of
California, without regard to conflicts of laws principles thereof, except as
provided in Section 14.


 


17.                               Entire
Agreement.


 


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


 


18.                               Modifications.


 


This Agreement shall not
be modified by any oral agreement, either express or implied, and all
modifications hereof shall be in writing and signed by the parties hereto.


 


19.                               Waiver.


 


Failure to insist upon
strict compliance with any of the terms, covenants, or conditions hereof shall
not be deemed a waiver of such term, covenant, or condition, nor shall any
waiver 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 or
relinquishment of such right or power at any other time or times.


 


20.                               Number
and Gender.


 


Where the context
requires, the singular shall include the plural, the plural shall include the
singular, and any gender shall include all other genders.


 


21.                               Section Headings.


 


The section headings
in this Agreement are for the purpose of convenience only and shall not limit
or otherwise affect any of the terms hereof.


 


22.                               Resolution
of Disputes.


 


Any controversy or claim
arising out of or relating to the Executive’s employment, this Agreement, its
enforcement, arbitrability, or interpretation, or because of an alleged breach,
default, or misrepresentation in connection with any of its provisions, shall
be submitted to arbitration in Santa Clara County, California, before a single
arbitrator, in accordance with the National Rules for the Resolution of
Employment Disputes then in


 


14

















 


effect of the American
Arbitration Association (“AAA”) as modified by the terms and
conditions of this Section 22; provided, however, that
provisional injunctive relief may, but need not, be sought in a court of law
while arbitration proceedings are pending, and any provisional injunctive
relief granted by such court shall remain effective until the matter is finally
determined by the arbitrator.  The
arbitrator shall be selected by mutual agreement of the parties or, if the
parties cannot agree, by striking from a list of arbitrators supplied by
AAA.  The arbitrator shall issue a
written opinion revealing, however briefly, the essential findings and
conclusions upon which the award is based. 
Final resolution of any dispute through arbitration may include any
remedy or relief which the arbitrator deems just and equitable.  Any award or relief granted by the
arbitrator hereunder shall be final and binding on the parties hereto and may
be enforced by any court of competent jurisdiction.


 


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


 


The Company shall pay the
arbitrator’s fees and arbitration expenses and any other costs associated with
the arbitration or arbitration hearing that are unique to artibration.  The Company and the Executive each shall
separately pay its or his own deposition, witness, expert and attorneys’ fees
and other expenses as and to the same extent as if the matter were being held
in court unless otherwise provided by law; provided, however,
that if the Executive prevails, the arbitrator may award the Executive
reasonable attorneys’ fees.  The
arbitrator shall resolve any dispute as to reasonableness of any fee or
cost.  The arbitrator shall have the
sole and exclusive power and authority to decide any and all issues of or
related to arbitrability.


 


23.                               Severability.


 


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


 


24.                               Notices.


 


All notices under this
Agreement shall be in writing and shall be either personally delivered or
mailed postage prepaid, by certified mail, return receipt requested:


 


(i)                                     if
to 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)                                  if
to the Executive:


 


Arthur W. Zafiropoulo


148 Austin Avenue


Atherton, CA 94027


 


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.


 


25.                               Counterparts.


 


This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.


 


26.                               Withholding
Taxes.


 


The Company may withhold
from any amounts payable under this Agreement such federal, state and local
income, employment, or other taxes as may be required to be withheld pursuant
to any applicable law or regulation.


 


27.                               Beneficiaries.


 


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


 


28.                               Director’s
and Officer’s Insurance.


 


The Company shall provide
director’s and officer’s insurance coverage for the Executive to the extent
that the Company provides such coverage for its other senior executive
officers.


 


29.                               No
Mitigation or Offset.


 


In the
event of any termination of employment under this Agreement, the Executive
shall be under no obligation to seek other employment and there shall be no
offset against amounts due the Executive under this Agreement on account of any
remuneration attributable to any subsequent employment that he may obtain
except on account of any claims the Company may have against the Executive.


 


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30.                               Right
to Advice of Counsel.


 


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


 


31.                               Survival.


 


Upon
the 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 the
Executive have executed this Employment Agreement as of the date first above
written.


 


	
   

  	
  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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