AMENDED AND RESTATED ]INDEMNIFICATION AGREEMENT
Exhibit 10.1
[AMENDED AND RESTATED ]INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the “Agreement”) is made and entered into this th day of , 20
between
Ultratech, Inc., a Delaware corporation (“the Company”) and (“Indemnitee”). [This
Agreement amends and restates and supersedes and replaces that certain Indemnification Agreement
dated as of by and between the Company and Indemnitee (the “Prior Agreement”).]
WITNESSETH THAT:
WHEREAS, Indemnitee performs a valuable service for the Company; and
WHEREAS, the Bylaws of the Company (the “Bylaws”) and the General Corporation Law of the State
of Delaware (the “Law”) by their nonexclusive nature, permit contracts between the Company and the
directors and officers of the Company with respect to indemnification and advancement of expenses
of such directors and officers; and
WHEREAS, in accordance with the authorization as provided by the Law, the Company may purchase
and maintain a policy or policies of director’s and officer’s liability insurance (“D & O
Insurance”), covering certain liabilities which may be incurred by its directors and officers in
the performance of their obligations as directors and officers of the Company; and
WHEREAS, as a result of recent developments affecting the terms, scope and availability of D &
O Insurance there exists general uncertainty as to the extent of protection afforded Company
directors and officers by such D & O Insurance and said uncertainty also exists under statutory and
bylaw indemnification provisions; and
WHEREAS, there have been changes in the Law and other laws, as well as a continuing and
increasing risk associated with legal actions against directors and officers; and
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws of the Company and
any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, in recognition of past services and in order to induce Indemnitee to continue to
serve as a director and/or officer of the Company, the Company has determined and agreed to enter
into this contract with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee’s continued service as a director and/or
officer after the date hereof the parties hereto agree as follows:
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the full extent authorized or permitted by the provisions of the Law, as such may be
amended from time to time. In furtherance of the foregoing indemnification, and without limiting
the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a) if, by reason of
his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to or
participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right
of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all
Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to
the rights of indemnification provided in this Section 1(b) if, by reason of his Corporate Status,
he is, or is threatened to be made, a party to or participant in any Proceeding brought by or in
the right of the Company to procure a judgment in its favor. Pursuant to this Section 1(b),
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the best interests of
the Company; provided, however, that, if applicable law so provides, no indemnification against
such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company unless and to the extent that the
Court of Chancery of the State of Delaware, or the court in which such Proceeding shall have been
brought or is pending, shall determine that such indemnification may be made.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason
of his Corporate Status, a party to (or participant in) and is successful, on the merits or
otherwise, in any Proceeding or defense of any claim, issue or matter therein, in whole or in part,
he shall be indemnified to the maximum extent permitted by law against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him or on his behalf in connection with
each successfully resolved claim, issue or matter, to the fullest extent
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permitted by law. For purposes of this Section and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity.
(a) Subject only to the exclusions set forth in Section 2(b) hereof, the Company hereby
further agrees to hold harmless and indemnify Indemnitee against any and all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection
with any Proceeding (including an action by or on behalf of the Company) to which Indemnitee is,
was or at any time becomes a party, or is threatened to be made a party, by reason of his Corporate
Status; provided, however, that with respect to actions by or on behalf of the Company,
indemnification of Indemnitee against any judgments shall be made by the Company only as authorized
in the specific case upon a determination that Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company; and
(b) No indemnity pursuant to this Section 2 shall be paid by the Company:
(i) In respect to remuneration paid to Indemnitee if it shall be determined by a final
judgment or other final adjudication that such remuneration was in violation of law;
(ii) For which payment has actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess beyond the amount
paid under any insurance policy or other indemnity provision;
(iii) For (i) an accounting of profits made from the purchase or sale by Indemnitee of
securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto (the “Act”) or similar provisions of any federal, state or local
statutory law, or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other
incentive-based or equity -based compensation or of any profits realized by the Indemnitee from the
sale of securities of the Company, as required in each case under the Act (including any such
reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), or the payment to the Company of profits
arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act);
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(iv) On account of Indemnitee’s conduct which is finally adjudged to have been knowingly
fraudulent or deliberately dishonest, or to constitute willful misconduct; or
(v) If a final decision by a court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
3. Contribution. To the fullest extent permitted by law, if the indemnification
provided in Sections 1 and 2 is unavailable and may not be paid to Indemnitee for any reason
other than those set forth in Section 2(b), the Company shall contribute to the amount of
Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and
paid or payable by Indemnitee in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and by the Indemnitee on the other hand from the
transaction from which such Proceeding arose, and (ii) the relative fault of the Company on the
one hand and of the Indemnitee on the other hand in connection with the events which resulted in
such Expenses, judgments, fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the Indemnitee on the
other hand shall be determined by reference to, among other things, the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent the circumstances
resulting in such Expenses, judgments, fines or settlement amounts. The Company agrees that it
would not be just and equitable if contribution pursuant to this Section 3 were determined by pro
rata allocation or any other method of allocation which does not take account of the foregoing
equitable considerations.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness
in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement, the
Company shall advance, to the extent not prohibited by law, all reasonable Expenses incurred by or
on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate
Status within ten days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Advances shall include any and all reasonable Expenses incurred
pursuing an action to enforce this right of advancement, including Expenses incurred preparing and
forwarding statements to the Company to support the advances claims. Such statement or statements
shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified against such
Expenses. Any advances and
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undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. This
Section 5 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant
to Section 2(b)(ii) or (iii).
6. Procedure for Determination of Entitlement to Indemnification.
(a) Indemnitee shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as
reasonably practicable following the receipt by Indemnitee of written notice thereof. The written
notification to the Company shall include a description of the nature of the Proceeding and the
facts underlying the Proceeding. To obtain indemnification and/or advancement of Expenses by the
Company under this Agreement, Indemnitee shall submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably available to Indemnitee
and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to such
indemnification and/or advancement of Expenses. The failure by Indemnitee to notify the Company
hereunder shall not relieve the Company from any liability which it may have to Indemnitee
hereunder or otherwise than under this Agreement, and any delay in so notifying the Company shall
not constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of the
Company shall, promptly upon receipt of such a request for indemnification and/or advancement of
Expenses, advise the Board of Directors in writing that Indemnitee has made such a request.
(b) The Company shall be entitled to participate in the Proceeding at its own expense.
(c) Upon written request by Indemnitee for indemnification pursuant to Section 6(a) hereof,
a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall be made in the specific case: (i) if a Change in Control (as hereinafter defined) shall
have occurred, by Independent Counsel (as hereinafter defined) in a written opinion to the Board
of Directors, a copy of which shall be delivered to Indemnitee (unless Indemnitee shall request
that such determination be made by the Board of Directors or the stockholders, in which case the
determination shall be made in the manner provided in Clause (ii) below), or (ii) if a Change in
Control shall not have occurred, (A) by the Board of Directors by a majority vote of the
Disinterested Directors (as hereinafter defined), or (B) if there are no such Disinterested
Directors or, said Disinterested Directors so direct, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (C) by a
committee of Disinterested Directors designated by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board of Directors, or (D) if so directed by
said Disinterested Directors, by the stockholders of the Company; and, if it is determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10)
days after such
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determination. Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to indemnification including providing to
such person, persons or entity upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available
to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of
the Board of Directors, or stockholder of the Company shall act reasonably and in good faith in
making a determination under this Agreement of the Indemnitee’s entitlement to indemnification.
Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and
the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(d) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(c) hereof, the Independent Counsel shall be selected as provided in
this Section 6(d). If a Change in Control shall not have occurred, the Independent Counsel shall
be selected by the Board of Directors, and the Company shall give written notice to Indemnitee
advising him of the identity of the Independent Counsel so selected. If a Change in Control
shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee
shall request that such selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the
identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as
the case may be, may, within 10 days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such
selection; provided, however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of “Independent Counsel” as
defined in Section 14 of this Agreement, and the objection shall set forth with particularity the
factual basis of such assertion. Absent a proper and timely objection, the person so selected
shall act as Independent Counsel. If a written objection is made and substantiated, the
Independent Counsel selected may not serve as Independent Counsel unless and until such objection
is withdrawn or a court has determined that such objection is without merit. If, within 20 days
after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a)
hereof, no Independent Counsel shall have been selected and not objected to, either the Company
or Indemnitee may petition the Court of Chancery of the State of Delaware or other court of
competent jurisdiction for resolution of any objection which shall have been made by the Company
or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 6(c) hereof. The Company
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shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 6(c) hereof, and the Company
shall pay all reasonable fees and expenses incident to the procedures of this Section 6(d),
regardless of the manner in which such Independent Counsel was selected or appointed. Upon the
due commencement of any judicial proceeding or arbitration pursuant to Section 8(a)(iii) of this
Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in
such capacity (subject to the applicable standards of professional conduct then prevailing).
(e) The Company shall not be required to obtain the consent of the Indemnitee to the
settlement of any Proceeding which the Company has undertaken to defend if the Company assumes full
and sole responsibility for such settlement and the settlement grants the Indemnitee a complete and
unqualified release in respect of the potential liability.
7. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall, to the fullest extent not prohibited
by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 6(a) of this Agreement, and
the Company shall, to the fullest extent not prohibited by law, have the burden of proof to
overcome that presumption in connection with the making by any person, persons or entity of any
determination contrary to that presumption.
(b) Subject to Section 8(f), if the person, persons or entity empowered or selected under
Section 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within thirty (30) days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall be deemed to have
been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law; provided, however, that such 30-day
period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the
person, persons or entity making the determination with respect to entitlement to indemnification
in good faith requires such additional time for the obtaining or evaluating documentation and/or
information relating thereto; and provided, further, that the foregoing provisions of this Section
7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days
after receipt by the Company of the request for such determination the Board of
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Directors or the Disinterested Directors, if appropriate, resolve to submit such determination
to the stockholders for their consideration at an annual meeting thereof to be held within seventy
five (75) days after such receipt and such determination is made thereat, or (B) a special meeting
of stockholders is called within fifteen (15) days after such receipt for the purpose of making
such determination, such meeting is held for such purpose within sixty (60) days after having been
so called and such determination is made thereat, or (ii) if the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 6(c) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere
or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, or on the advice of legal counsel for
the Enterprise or on information or records given or reports made to the Enterprise by an
independent certified public accountant or by an appraiser or other expert selected with
reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this Agreement. The provisions of
this Section 7(d) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
8. Remedies of Indemnitee.
(a) Subject to Section 8(f), in the event that (i) a determination is made pursuant to Section
6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no
determination of entitlement to indemnification shall have been made pursuant to Section 6(c) of
this Agreement within 90 days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification or contribution is not made pursuant to Section 1(c), 3 or 4 of this
Agreement within ten (10) days after receipt by the Company of a written request therefor, (v)
payment of indemnification is not made within ten (10) days after a
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determination has been made that Indemnitee is entitled to indemnification or such
determination is deemed to have been made pursuant to Section 6 or 7 of this Agreement, or (vi) in
the event that the Company or any other person takes or threatens to take any action to declare
this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding
designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be
provided to the Indemnitee hereunder, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification and/or advancement of Expenses, as the case may be.
Alternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. The Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 6(c) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 8 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 8 the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 6(c) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 8, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 8, seeks a judicial adjudication of
or an award in arbitration to enforce his rights under, or to recover damages for breach of, this
Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by
the Company against, any and all expenses (of the types described in the definition of Expenses in
Section 16 of this Agreement) actually and reasonably incurred by him in such judicial adjudication
or arbitration, but only if he prevails therein. If it shall be determined in said judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not all of the
indemnification sought, the expenses incurred by Indemnitee in connection with such judicial
adjudication or arbitration shall be appropriately prorated. It is the intent of the Company that,
to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other
Expenses associated with the interpretation, enforcement or
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defense of Indemnitee’s rights under the Agreement by litigation or otherwise because the cost
and expense thereof would substantially detract from the benefits intended to be extended to the
Indemnitee hereunder. The Company shall, to the fullest extent permitted by law, indemnify
Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10)
days after receipt by the Company of a written request therefor) advance, to the extent not
prohibited by law, such Expenses to Indemnitee, which are incurred by Indemnitee in connection with
any action brought by Indemnitee for indemnification or advancement of Expenses from the Company
under this Agreement or under any directors’ and officers’ liability insurance policies maintained
by the Company if Indemnitee is wholly successful on the underlying claims; if Indemnitee is not
wholly successful on the underlying claims, then such indemnification and advancement shall be only
to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by law,
whichever is greater.
(e) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 8 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement of Indemnitee to indemnification under this Agreement shall be required to be made
prior to the final disposition of the Proceeding.
9. Non-Exclusivity; Survival of Rights; Insurance: Subrogation.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the certificate of incorporation of the Company, the Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right
of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in
his Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in
the Law, whether by statute or judicial decision, permits greater indemnification or advancement of
Expenses than would be afforded currently under the Bylaws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change. No right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
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(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or
of any other corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the Company, Indemnitee shall be covered by
such policy or policies in accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy or policies. If, at
the time of the receipt of a notice of a claim or commencement of a Proceeding pursuant to the
terms hereof, the Company has director and officer liability insurance in effect, the Company shall
give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the
insurers in accordance with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such
policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, officer, employee or agent of any other
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification
or advancement of Expenses from such other corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other enterprise.
10. Exception to Right of Indemnification. Notwithstanding any other provision of
this Agreement, Indemnitee shall not be entitled to indemnification under this Agreement with
respect to any Proceeding brought by Indemnitee, or any claim therein, unless (a) the bringing of
such Proceeding or making of such claim shall have been approved by the Board of Directors or (b)
such Proceeding is being brought by the Indemnitee to assert his rights under this Agreement.
11. Duration of Agreement. All agreements and obligations of the Company contained
herein shall continue during the period Indemnitee is a director, officer, employee or agent of the
Company (or is or was serving at the request of the
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Company as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise), whether the act or omission occurred or Proceeding is brought
before or after the date of this Agreement, and shall continue thereafter so long as Indemnitee
shall be subject to any Proceeding (or any proceeding commenced under Section 8 hereof) by reason
of his Corporate Status, whether or not he is acting or serving in any such capacity at the time
any liability or expense is incurred for which indemnification can be provided under this
Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the business or assets
of the Company), assigns, spouses, heirs, executors and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to serve as a
director, officer, employee or agent of the Company or any other enterprise at the Company’s
request.
12. Security. To the extent requested by the Indemnitee and approved by the Board of
Directors, the Company may at any time and from time to time provide security to the Indemnitee for
the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or
other collateral. Any such security, once provided to the Indemnitee, may not be revoked or
released without the prior written consent of the Indemnitee.
13. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director
and/or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director and/or officer of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof[, including the Prior
Agreement]; provided, however, that this Agreement is a supplement to and in furtherance of the
Certificate of Incorporation of the Company, the Bylaws of the Company and applicable law, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder.
14. Definitions. For purposes of this Agreement:
(a) “Change in Control” means a change in control of the Company occurring after the date of
this Agreement of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in
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response to any similar item on any similar schedule or form) promulgated under the Act,
whether or not the Company is then subject to such reporting requirement; provided, however,
that, without limitation, such a Change in Control shall be deemed to have occurred if after the
date of this Agreement (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the
Act, as amended, but excluding (i) the Company, (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, and (iii) any corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company) other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company representing 20% or more of
the combined voting power of the Company’s then outstanding securities (other than any such
person or any affiliate thereof that is such a 20% beneficial owner as of the date hereof)
without the prior approval of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person attaining such percentage interest; (ii) there occurs a
proxy contest, or the Company is a party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization, as a consequence of which members of the Board of Directors
in office immediately prior to such transaction or event constitute less than a majority of the
Board of Directors thereafter; or (iii) during any period of two consecutive years (not including
any period prior to the execution of this Agreement), other than as a result of an event
described in clause (a)(ii) of this Section 16, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any new director whose election or
nomination for election by the Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board of Directors. A
Change in Control shall not be deemed to have occurred under item (i) above if the “person”
described under item (i) is entitled to report its ownership on Schedule 13G promulgated under
the Act and such person is able to represent that it acquired such securities in the ordinary
course of its business and not with the purpose nor with the effect of changing or influencing
the control of the Company, nor in connection with or as a participant in any transaction having
such purpose or effect. If the “person” referred to in the previous sentence would at any time
not be entitled to continue to report such ownership on Schedule 13G pursuant to Rule
13d-1(b)(3)(i)(B) of the Act, then a Change in Control shall be deemed to have occurred at such
time.
(b) “Corporate Status” describes the status of a person who is or was a director, officer,
employee or agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person is or was serving at
the express written request of the Company.
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(c) “Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(d) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the
express written request of the Company as a director, officer, employee, agent or fiduciary.
(e) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating, or being or preparing to be a witness in a
Proceeding. Expenses also shall include (i) Expenses incurred in connection with any appeal
resulting from any Proceeding, including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii)
for purposes of Section 8(d) only, Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation
or otherwise. The parties agree that for the purposes of any advancement of Expenses for which
Indemnitee has made written demand to the Company in accordance with this Agreement, all Expenses
included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable
shall be presumed conclusively to be reasonable.
(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of the Law and neither presently is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnitee in any matter material to either such party (other than
with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees
under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to
a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either the Company or Indemnitee
in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the
reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
(g) “Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether
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brought by or in the right of the Company or otherwise and whether of a civil, criminal,
administrative or investigative (formal or informal) nature, including any appeal therefrom, in
which Indemnitee was, is or will be involved as a party, potential party, non-party witness or
otherwise, by reason of the fact that Indemnitee is or was a director and/or officer of the
Company, by reason of any action taken by him or of any inaction on his part while acting as a
director and/or officer of the Company, or by reason of the fact of his Corporate Status or that he
otherwise is or was serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise, in each case whether
or not he is acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification, reimbursement or advancement of expenses can be provided under
this Agreement, including one pending on or before the date of this Agreement and excluding one
initiated by an Indemnitee pursuant to Section 8 of this Agreement to enforce his rights under this
Agreement. If Indemnitee believes in good faith that a given situation may lead to or culminate in
the institution of a Proceeding, this shall be considered a Proceeding under this paragraph.
(h) Reference to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Company” shall include any service as a director, officer,
employee or agent of the Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in
the best interests of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to
in this Agreement.
15. Severabilitv. If any provision or provisions of this Agreement shall be held by a
court of competent jurisdiction to be invalid, void, illegal or otherwise unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
16. Modification and Waiver. No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by both of the parties to this
Agreement. No waiver of any of the provisions of this
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Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver, unless, in each case, the
waiver expressly so states.
17. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be subject to indemnification covered
hereunder. The failure to so notify the Company shall not relieve the Company of any obligation
which it may have to the Indemnitee under this Agreement or otherwise.
18. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted
for by the party to whom said notice or other communication shall have been directed, (ii) mailed
by certified or registered mail with postage prepaid, on the third business day after the date on
which it is so mailed, (iii) sent by reputable overnight courier and receipted for by the party to
whom said notice or other communication shall have been directed, or (iv) sent by facsimile
transmission, with receipt of confirmation that such transmission has been received:
| (a) | If to Indemnitee, to: | ||
| [DIRECTOR] | |||
| (b) | If to the Company, to: |
Ultratech, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ( )
Attention: Chief Executive Officer; Secretary
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ( )
Attention: Chief Executive Officer; Secretary
or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.
19. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.
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20. Headings. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
21. Governing Law. The parties agree that this Agreement and legal relations among
the parties shall be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles thereof. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 8(a) of this Agreement, the
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought only in the
Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other state or
federal court in the United States of America or any court in any other country, (ii) consent to
submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding
arising out of or in connection with this Agreement, (iii) waive any objection to the laying of
venue of any such action or proceeding in the Delaware Court, and (iv) waive, and agree not to
plead or to make, any claim that any such action or proceeding brought in the Delaware Court has
been brought in an improper or inconvenient forum.
22. Gender. Use of the masculine pronoun shall be deemed to include usage of the
feminine pronoun where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
| ULTRATECH, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INDEMNITEE | ||||||
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