EMPLOYMENT AGREEMENT
EXHIBIT 10.24
THIS EMPLOYMENT AGREEMENT (this
"Agreement") is entered into as of September 10, 2007 by and between
Photronics, Inc., a Connecticut corporation (the "Company"), having a
principal place of business at 00 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000 and
Xxxxxxxxxxx Xxxxxxx ("Executive") residing at 0000 Xxxxxxxx Xxxxx, Xxxxx,
Xxxxx 00000.
WITNESSETH:
WHEREAS, the Company and Executive desire to
enter into this Agreement to assure the Company of the continuing service of
Executive and to set forth the terms and conditions of Executive's employment
with the Company.
NOW, THEREFORE, in consideration of the mutual
promises and covenants set forth herein, the parties agree as follows:
1. Term. The Company agrees to employ
Executive and Executive hereby accepts such employment, in accordance with the
terms of this Agreement. Subject to Section 5, the term of
Executive's employment shall commence on the date hereof and continue for three
(3) years thereafter unless this Agreement is earlier terminated as provided
herein (the "Term"); provided, however, that unless the Company
gives written notice to Executive at least thirty (30) days prior to the end of
the Term of this Agreement (as the Term may be extended pursuant to this
Section 1), on each anniversary of the date hereof, the Term of this
Agreement shall automatically be extended for an additional one (1) year
period.
2. Services. So long as this Agreement shall
continue in effect, Executive shall devote Executive's full business time,
energy and ability to the business, affairs and interests of the Company and its
subsidiaries and matters related thereto. Executive shall use his best efforts
and abilities to promote the Company's interests and shall perform faithfully
the services contemplated by this Agreement in accordance with the Company's
policies as established by the Board of Directors of the Company.
3. Duties and Responsibilities.
(a) Executive shall serve as the
Vice President and Chief Technology Officer of the Company. In the
performance of Executive's duties, Executive shall report directly to the CEO or
as otherwise directed by the CEO or the Company's Board of Directors, and shall
have such duties, responsibilities and authority as may from time to time be
assigned to the Executive by the CEO or the Company's Board of
Directors.
(b) In addition, Executive agrees to
observe and comply with the policies, rules and regulations of the
Company. The Company agrees that the duties which may be assigned to
Executive shall be the customary duties of the office of Vice President and
Chief Technology Officer and shall not be inconsistent with the provisions of
the charter documents of the Company or applicable law.
4. Compensation.
(a) Base
Compensation. During the Term, the Company agrees to pay
Executive a base salary at the rate of $242,999.90 per year payable in
accordance with the Company's customary payroll practices generally applicable
to similarly situated employees as may be in effect from time to time (the
"Base Salary"). All payments required hereunder, including the
payments required by this Section 4(a), may be allocated by the Company
to one or more of its subsidiaries to which Executive renders services but the
Company shall remain responsible for all payments hereunder and Executive shall
have no obligation to seek payment from such subsidiaries.
(b) Periodic
Review. The Compensation Committee or the Board of Directors of
the Company shall review Executive's Base Salary and Benefits (as defined below)
from time to time in accordance with the normal business practices of the
Company. The Company may in its sole discretion increase the Base Salary during
the Term. The amount of any increase combined with the previous year's
Base Salary shall then constitute Executive's Base Salary for purposes of this
Agreement.
(c) Additional
Benefits. During the Term, the Executive shall be entitled to
participate in the employee benefit plans and arrangements as the Company may
establish from time to time in which other employees similarly situated are
entitled to participate (which may include, without limitation, bonus plan(s),
medical plan, dental plan, disability plan, basic life insurance and business
travel accident insurance plan, 401(k) plan, stock option or stock purchase
plans or any successor plans thereto (the "Benefits")). The Company
shall have the right to terminate or change any such plans or programs at any
time.
(d) Automobile
Allowance. During the Term of this Agreement, the Company shall
provide the Executive with an automobile allowance or company car consistent
with the Company's policies and provisions applicable to other similarly
situated executives of the Company.
(e) Vacation. During
the Term of this Agreement, Executive shall be entitled to four (4) weeks' paid
vacation per calendar year, which shall not be transferable to any subsequent
year.
5. Termination. This Agreement and all rights
and obligations hereunder, except the rights and obligations contained in this
Section 5, Section 7 (Confidential Information), Section 8
(Non-Competition), Section 9 (Intellectual Property) and Section
10 (Remedies), which shall survive any termination hereunder, shall
terminate upon the earliest to occur of any of the following:
(a) Resignation without Good
Reason; Retirement. Upon the resignation by Executive without Good
Reason (as defined below) following at least thirty (30) days written notice to
the Company or retirement from the Company in accordance with the normal
retirement policies of the Company, Executive shall be entitled to receive a
payment in the amount of the sum of (A) Executive's Base Salary through the
last day of employment to the extent not theretofore paid, (B) any compensation
previously deferred by Executive (together with any accrued interest or earnings
thereon), and (C) any accrued vacation pay according to Company U.S. Vacation
Policy, in each case to the extent not theretofore paid (the sum of the amounts
described in clauses (A), (B) and (C) shall be hereinafter referred to as the
"Accrued Obligations"), in a lump sum, subject to statutory deductions
and withholdings, in cash within ten (10) business days after the last day of
employment or any earlier time required by applicable law.
(b) Death or Disability of
Executive.
(i) If
Executive's employment is terminated by reason of Executive's death or
disability, this Agreement shall terminate without further obligations to
Executive (or Executive's heirs or legal representatives) under this Agreement,
other than for:
(1) Payment
of any Accrued Obligations, which shall be paid to Executive or Executive's
estate or beneficiary, as applicable, in a lump sum, subject to statutory
deductions and withholdings, in cash within ten (10) business days after the
date of termination or any earlier time required by applicable law.
(2) Payment
to Executive or Executive's estate or beneficiary, as applicable, of any amount
accrued pursuant to the terms of any other applicable benefit plan.
(ii) If
Executive shall become disabled, Executive's employment may be terminated only
by written notice from the Company to Executive.
(iii) For
the purposes of this Agreement, "disability" or "disabled" shall
mean a mental or physical incapacity which prevents Executive from performing
Executive's duties with the Company for a period of three hundred sixty (360)
consecutive calendar days, as certified by a physician selected by the Company
or its insurers.
(c) Termination for
Cause.
(i) The
Company may terminate Executive's employment and all of Executive's rights to
receive Base Salary, and any Benefits hereunder for Cause.
(ii) Upon
such termination for Cause, Executive shall be entitled to receive any Accrued
Obligations, which shall be paid to Executive in a lump sum, subject to
statutory deductions and withholdings, in cash within ten (10) business days
after the date of termination or any earlier time required by applicable
law.
(iii) For
purposes of this Agreement, the term "Cause" shall be defined as any of
the following:
(1) Executive's
material breach of any of any obligations under this Agreement (other than by
reason of physical or mental illness, injury, or condition);
(2) Executive's
conviction by, or entry of a plea of "guilty" or "nolo contendere" in a court of
competent and final jurisdiction for any felony that impairs his ability to
perform his duties to the Company or any crime of moral turpitude;
(3) Executive's
commission of an act of fraud upon the Company;
(4) Executive's
engaging in willful or reckless misconduct or gross negligence in connection
with any property or activity of the Company or its Affiliates;
(5) Executive's
repeated and intemperate use of alcohol or illegal drugs after written notice
from the Board or Directors;
(6) Executive's
material breach of any other material obligation to the Company (other than by
reason of physical or mental illness, injury, or condition) that is or could
reasonably be expected to result in material harm to the Company;
(7) Executive's
becoming insolvent or filing for bankruptcy;
(8) Executive's
becoming barred or prohibited by the SEC from holding my position with the
Company; or
(9) Executive's
violation of any duty of loyalty (i.e., engaging in self-interested
transactions, misappropriation of business opportunities that belong to the
Company, or a breach of Executive's fiduciary duties to the Company).
(d) Termination Without Cause;
Resignation For Good Reason.
(i) Notwithstanding
any other provision of this Section 5, (i) the Company may, at its option
and at any time, provide to Executive: (A) up to twelve (12) months' advance
written notice of termination of employment without Cause, or (B) written notice
of a current material adverse change in the Executive's position (such notice in
(A) or (B) being referred to herein as a "Working Notice"). If the Company
issues a Working Notice to the Executive, any entitlement to a Severance Payment
and Benefit Period (as defined below) shall be reduced in proportion to the
period covered by the Working Notice. During the period covered by the
Working Notice, the Executive shall continue to provide the services according
to Section 2, hereof as an employee of the Company. If the Executive
resigns during the period covered by the Working Notice, then Executive shall
receive only the Accrued Obligations through the date of termination.
Executive, upon thirty (30) days advance notice to the Company, shall have the
right to resign for Good Reason.
(ii) If
Executive is so terminated without Cause or resigns for Good Reason, Executive
shall receive from the Company:
(1) Any
Accrued Obligations through the date of termination, which shall be paid to
Executive in a lump sum, subject to statutory deductions and withholdings, in
cash within ten (10) business days after the date of termination or any earlier
time required by applicable law.
(2) A
payment ("Severance Payment") equal to twelve (12) months of Executive's
current Base Salary. The Severance Payment shall be paid by the Company to
Executive in equal installments, following the expiration of the Revocation
Period defined in the Release referred to in Section 5(d)(iv), in
accordance with the Company's customary payroll practices generally applicable
to similarly situated employees as may be in effect from time and shall be
subject to statutory deductions and withholdings.
(3) Payment
of Executive's COBRA premiums for the 360-day period following termination of
employment ("Benefit Period"), provided Executive elects to receive COBRA
continuation coverage and is eligible for COBRA continuation coverage.
(iii) As
used in this Agreement, the term "Good Reason" shall mean (i) (except as set
forth in Section 5(e)) the relocation of the Company's principal
executive offices to a location outside the contiguous 48 United States without
the consent of Executive or (ii) a material diminution in Executive's overall
employee benefits not the result of changes in benefit plans affecting other
employees, without the consent of Executive.
(iv) As
a condition to receiving the payment and benefits extension contemplated by
Section 5(d) or 5(e), Executive agrees to execute and deliver to the
Company the Release substantially in the form attached to this Agreement as
Exhibit A.
(e) Change of
Control.
(i) For
purposes of the Agreement, a "change of control" means, and shall be deemed to
have taken place, if;
(1) any
individual, partnership, firm, corporation, association, trust, unincorporated
organization or other entity or person, or any syndicate or group deemed to be a
person under Section 14 (d) (2) of the Exchange Act, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), directly or indirectly, of securities of
the Company representing 50% or more of the combined voting power of the
Company's then outstanding securities entitled to vote in the election of
directors of the Company;
(2) during
any period of two (2) consecutive years (not including any period prior to the
execution of this Agreement) individuals who at the beginning of such period
constituted the Board and any new directors, whose election by the Board or
nomination for election by the Company's shareholders was approved by a vote of
at least three-fourths (3/4ths) of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to constitute a
majority of the Board;
(3) there
occurs a reorganization, merger, consolidation or other corporate transaction
involving the Company (a "Transaction"), and shareholders of the Company
immediately prior to such Transaction do not, immediately after the Transaction,
own more than 50% of the combined voting power of the Company or other
corporation resulting from such Transaction; or
(4) there
is a "change in control" of the Company within the meaning of Section 280G of
the U.S. Federal internal revenue code of 1986.
(iii) If
during the period three (3) months before or two (2) years following a "change
in control" of the Company (or any successor), the Executive is terminated by
the Company for any reason (other than for Cause as defined in Section
5(c) thereof), including an election by the Company or its successor not to
extend this Agreement pursuant to Section 1, or the Executive resigns for Good
Reason as defined in Section 5(e)(ii)), " "Executive shall be entitled to
receive a cash payment equal to eighteen (18) months of Executive's current Base
Salary and the benefits described in Section 5(d)(ii) of the
Agreement. Upon such "change of control" during the Term, the Term of this
Agreement shall automatically be the period equal to the longer of (i) two (2)
years from the date of the "change of control" or (ii) the remaining period of
the initial three (3) year Term after the "change of control". In no event
shall Executive be entitled to receive both the Severance Payment described in
Section 5(d) hereof and the "change of control" payment described in this
Section 5(e).
(iv) Any
payments to be made to Executive in connection with this Section 5(e)
shall be made in a lump sum, subject to statutory deductions and withholdings,
in cash within ten (10) business days after the date of termination or any
earlier time required by applicable law, following the expiration of the
Revocation Period defined in the Release referred to in Section
5(d)(iv).
(f) Tax
Consideration.
(i) In
the event that the aggregate of all payments or benefits made or provided to the
Executive under this Agreement and under all other plans and programs of the
Company (the "Aggregate Payment") is determined to constitute a Parachute
Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue
Code of 1986, as amended (the "Code"), the Company shall pay to the Executive an
additional amount (the "Gross-Up Amount"), prior to the time any excise
tax ("Excise Tax") is imposed by Section 4999 of the Code is payable with
respect to such Aggregate Payment, which, after the imposition of all excise,
federal, state and local income taxes, enables the Executive to retain a total
amount equal to the Aggregate Payment prior to the payment of the Gross-Up
Amount. Notwithstanding the foregoing, if it shall be determined that the
Executive is entitled to receive the Gross-Up Amount, but the portion of the
Aggregate Payment that would be treated as a Parachute Payment does not exceed
125% of the greatest amount that could be paid to the Executive such that the
receipt of the Aggregate Payment would not give rise to any Excise Tax (the
"Safe Harbor Amount"), then no Gross-Up Amount shall be paid to the Executive
and the Aggregate Payment shall be reduced to the Safe Harbor Amount.
(ii) All
determinations required to be made under this Section 5(f), including
whether the Aggregate Payment constitutes a Parachute Payment, the amount of the
Gross-Up Amount to be paid to the Executive, if any, and the determination of
the Safe Harbor Amount, if applicable, shall be made in good faith by the by the
Company's regular outside auditors (the "Accounting Firm");
provided, however, that such Accounting Firm presents its rationale and
supporting calculations to the Executive upon his request and shall in good
faith work to resolve any discrepancies raised by accountants or lawyers chosen
by the Executive who present reasonable critiques of the determination. If
a dispute over the methodology or conclusions of the Accounting Firm cannot be
resolved between the parties, an impartial accounting firm shall be consulted to
resolve the dispute. All fees and expenses of the Accounting Firm incurred
in connection with the retention of the Accounting Firm pursuant to this Section
5(f) shall be borne by the Company. All fees and expenses of the accountants and
lawyers chosen by the Executive and, if retained, the additional accounting
firm, incurred in connection with the resolution of any disputes pursuant to
this Section 5(f) shall be borne by the non-prevailing party.
(iii) As
a result of uncertainty in the application of Sections 280G and 4999 of the Code
at the time of the determination by the Accounting Firm, the parties hereto
acknowledge and agree that it is possible that the Company will have paid a
Gross-Up Amount that exceeds the amount that the Company should have paid
pursuant to this Section 5(f) (the "Overpayment") or that the Company
will have paid a Gross-Up Amount that is less than the amount that the Company
should have paid pursuant to this Section 5(f) (the
"Underpayment"). In the event the Accounting Firm, in a written
opinion delivered to the Company and to the Executive, determines that, based
upon the assertion of a deficiency by the Internal Revenue Service against the
Executive, which the Accounting Firm believes has a high probability of success,
an Overpayment has been made, then any such Overpayment shall, to the extent
permitted under applicable law (including Section 402 of the Xxxxxxxx-Xxxxx Act
of 2002), be treated for all purposes as a loan to the Executive which the
Executive shall promptly repay to the Company together with interest at the
Applicable Federal Rate provided for in Section 7872(f)(2) of the Code;
provided, however, the Executive may contest any such determination by the
Accounting Firm at his own expense. In the event the Accounting Firm,
based upon controlling precedent or other substantial authority, determines that
an Underpayment has occurred, any such Underpayment shall be promptly paid by
the Company to or for the benefit of the Executive together with interest at the
Applicable Federal Rate provided for in Section 7872(f)(2) of the Code.
(g) Treatment
of Stock Options Upon Change of Control or a Termination.
(i) All
stock options or similar rights granted to Executive pursuant to the Company's
stock option plans including, without limitation, any restricted stock shall
immediately vest as of the effective date of such "change of control".
(ii) If
this Agreement is terminated pursuant to clause (c) of this Section
5 or if Executive resigns his employment, all unvested stock options granted
to Executive pursuant to the Company's stock plans shall terminate
immediately.
To
the extent that the Executive has been granted stock options intended to be
incentive stock options under Section 422 of the Internal Revenue Code, such
stock options shall cease to be incentive stock options and shall be treated as
nonqualified stock options if the options are exercised by the Employee more
than three (3) months (one year in case of death or disability as defined in
Section 422 of the Internal Revenue Code) following termination of
employment.
Except
as expressly modified by this clause (g) of this Section 5, all
stock options and similar rights granted under the Company's stock plans shall
remain subject to all of the terms and conditions of the applicable stock plans
and agreements evidencing the grants thereof.
(h) Exclusive Remedy.
Executive agrees that the payments other benefits provided and contemplated by
this Agreement shall constitute the sole and exclusive obligation of the Company
in respect of Executive's employment with and relationship to the Company and
that the full payment thereof shall be the sole and exclusive remedy for any
termination of Executive's employment. Executive covenants not to assert
or pursue any other remedies, at law or in equity, with respect to any
termination of employment.
6. Business Expenses. During the Term of
this Agreement, to the extent that such expenditures satisfy the criteria under
the Internal Revenue Code or other applicable laws for deductibility by the
Company (whether or not fully deductible by the Company) for federal income tax
purposes as ordinary and necessary business expenses, the Company shall provide
the Executive with reimbursement of reasonable business expenses incurred by the
Executive while conducting Company business in a manner consistent with the
Company's policies and provisions applicable to the Executives of the
Company.
7. Confidential Information.
(a) Executive acknowledges that the
nature of Executive's employment by the Company is such that Executive shall
have access to information of a confidential and/or trade secret nature which
has great value to the Company and which constitutes a substantial basis and
foundation upon which the business of the Company is based. Such
information includes (A) trade secrets, inventions, mask works, ideas,
processes, manufacturing, formulas, source and object codes, data, programs,
other works of authorship, know-how, improvements, discoveries, developments or
experimental work, designs, and techniques; (B) information regarding plans
for research, development, new products, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; (C) information regarding the skills and
compensation of other employees the Company or its affiliates, including but not
limited to, their respective business plans or clients (including, without
limitation, customer lists and lists of customer sources), or information
relating to the products, services, customers, sales or business affairs of the
Company or its Affiliates (the "Confidential Information").
(b) Executive shall keep all such
Confidential Information in confidence during the Term of this Agreement and at
any time thereafter and shall not disclose any of such Confidential Information
to any other person, except to the extent such disclosure is (i) necessary
to the performance of this Agreement and in furtherance of the Company's best
interests, (ii) required by applicable law, (iii) publicly known
within the relevant industry, or (iv) authorized in writing by the
Board. Upon termination of Executive's employment with the Company,
Executive shall deliver to the Company all documents, records, notebooks, work
papers, and all similar material containing any of the foregoing information,
whether prepared by Executive, the Company or anyone else.
8. Non-Competition. Executive covenants and
agrees that commencing on the date hereof and continuing for the entire Term of
Executive's employment and for period of twelve (12) months thereafter (the
"Restricted Period"), Executive shall not:
(a) Work or be affiliated with in
any capacity (including as a founder, employee, owner, consultant, or
otherwise), directly or indirectly, for himself or on behalf of any other
entity, in any business that manufacturers photomasks or that is otherwise
competitive with the business of the Company or any subsidiary of the Company at
any time during Executive's employment or during the Restricted Period, such as,
for example and not as a limitation, Toppan, DNP and the photomask manufacturing
operations of semiconductor manufacturers such as IBM and TSMC.
(b) Solicit, attempt to solicit, or
assist others in soliciting or attempting to solicit, directly or indirectly,
any business related to the business of the Company from any customers or
prospective customers of the Company; for the purposes of this Section 8,
the term "customer" means any entity or person who is or has been a
client or customer of the Company during the time which Executive was employed
with the Company, and the term "prospective customer" means a person or
entity who became known to the Company during the time which Executive was
employed with the Company as a result of that person's or entity's interest in
obtaining the services or products of the Company; and
(c) Solicit, attempt to solicit, or
assist others in soliciting or attempting to solicit, directly or indirectly,
for employment or similar capacity, any person who is an employee of, or an
independent contractor for, the Company or its direct or indirect subsidiaries,
parents or Affiliates or who was such an employee within twelve (12) months
prior to the date of such solicitation or attempted solicitation.
(d) Executive acknowledges that in
the event of his employment with the Company terminates for any reason,
Executive will be able to earn a livelihood without violating the foregoing
restrictions.
(e) If any provision or clause, or
portion thereof, within this Section 8 shall be held by any court or
other tribunal of competent jurisdiction to be illegal, invalid, or
unenforceable in such jurisdiction, the remainder of such provision shall not be
thereby affected and shall be given full effect, without regard to the invalid
portion. It is the intention of the parties that, if any court construes
any provision or clause within this Section 8, or any portion thereof, to
be illegal, void or unenforceable because of the duration of such provision or
the geographic area or matter covered thereby, such court shall reduce the
duration, area, or matter of such provision, and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
9. Intellectual Property.
(a) Executive has no interest
(except as disclosed to the Company) in any inventions, designs, improvements,
patents, copyrights and discoveries which are useful in or directly or
indirectly related to the business of the Company or to any experimental work
carried on by the Company. Except as may be limited by applicable law, all
inventions, designs, improvements, patents, copyrights and discoveries conceived
by Executive during the Term of this Agreement which are useful in or directly
or indirectly related to the business of the Company or to any experimental work
carried on by the Company, shall be the property of the Company.
Executive will promptly and fully disclose to the Company all such inventions,
designs, improvements, patents, copyrights and discoveries (whether developed
individually or with other persons) and will take all steps necessary and
reasonably required to assure the Company's ownership thereof and to assist the
Company in protecting or defending the Company's proprietary rights
therein.
(b) Executive also agrees to assist
the Company in obtaining United States or foreign letters patent and copyright
registrations covering inventions assigned hereunder to the Company and that
Executive's obligation to assist the Company shall continue beyond the
termination of Executive's employment but the Company shall compensate Executive
at a reasonable rate for time actually spent by Executive at the Company's
request with respect to such assistance. If the Company is unable because
of Executive's mental or physical incapacity (for the period of such incapacity
only) or for any other reason to secure Executive's signature to apply for or to
pursue any application for any United States or foreign letters patent or
copyright registrations covering inventions assigned to the Company (after
reasonable efforts to contact employee), then Executive hereby irrevocably
designates and appoints the Company, each of its duly authorized officers and
agents as Executive's agent and attorney-in-fact to act for and in Executive's
behalf and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by Executive. Executive will perform all other lawful acts
necessary to assist the Company to enforce any copyrights or patents obtained
including, without limitation, testifying in any suit or proceeding involving
any of the copyrights or patents or executing any documents deemed necessary by
the Company, all without further consideration but at the expense of the
Company. If Executive is called upon to render such assistance after the
termination of Executive's employment, then Executive shall be entitled to a
fair and reasonable per diem fee in addition to reimbursement of any expenses
incurred at the request of the Company.
10. Remedies. The parties hereto agree
that the services to be rendered by Executive pursuant to this Agreement, and
the rights and privileges granted to the Company pursuant to this Agreement, are
of a special, unique, extraordinary and intellectual character, which gives them
a peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in any action at law, and that a breach by Executive of
any of the terms of this Agreement will cause the Company great and irreparable
injury and damage. Executive hereby expressly agrees that the Company
shall be entitled to the remedies of injunction, specific performance and other
equitable relief to prevent a breach of this Agreement by Executive. This
Section 10 shall not be construed as a waiver of any other rights or
remedies which the Company may have for damages or otherwise.
11. Return of Property. Executive agrees
to return, on or before his last day of employment, all property belonging to
the Company, including but not limited to computers, PDA, telephone and other
credit cards, Company business records, Company automobile (if applicable),
etc.
12. Severability. If any provision of
this Agreement is held to be unenforceable for any reason, it shall be adjusted
rather than voided, if possible, to achieve the intent of the parties to the
extent possible. In any event, all other provisions of this Agreement
shall be deemed valid and enforceable to the extent possible.
13. Succession. This Agreement shall
inure to the benefit of and be binding upon the Company and its successors and
assigns and any such successor or assignee shall be deemed substituted for the
Company under the terms of this Agreement for all purposes. As used
herein, "successor" and "assignee" shall include any person, firm, corporation
or other business entity which at any time, whether by purchase, merger or
otherwise, directly or indirectly acquires the stock of the Company or to which
the Company assigns this Agreement by operation of law or otherwise. The
obligations and duties of Executive hereunder are personal and otherwise not
assignable. Executive's obligations and representations under this
Agreement will survive the termination of Executive's employment, regardless of
the manner of such termination.
14. Notices. Any notice or other
communication provided for in this Agreement shall be in writing and sent if to
the Company to its principal office at:
Photronics, Inc.
15 Xxxxx Road, XX Xxx 0000
Xxxxxxxxxx, Xxxxxxxxxxx
00000
Attention: Chief Executive Officer
With a copy to the Vice
President, Chief Financial Officer of Photronics, Inc.
or at such other address as the Company may from time to time in writing
designate, and if to Executive at the address set forth above or at such address
as Executive may from time to time in writing designate. Each such notice
or other communication shall be effective (I) if given by written
telecommunication, three (3) days after its transmission to the applicable
number so specified in (or pursuant to) this Section 14 and a
verification of receipt is received, (ii) if given by certified mail, once
verification of receipt is received, or (iii) if given by any other means,
when actually delivered to the addressee at such address and verification of
receipt is received.
15. Adequate Consideration. Executive
acknowledges that the cash severance and other benefits to be provided by the
Company to Executive are not available under any current plan or policies of the
Company. Accordingly, Executive further acknowledges that the payments and
benefits under this Agreement provide adequate consideration for Executive's
obligations to the Company contained in Section 7 (Confidential
Information), Section 8 (Non-Competition), Section 10 (Remedies)
and Exhibit A (Release).
16. Entire Agreement. This Agreement
contains the entire agreement of the parties relating to the subject matter
hereof and supersedes any prior agreements, undertakings, commitments and
practices relating to Executive's employment by the Company.
17. Amendments. No amendment or
modification of the terms of this Agreement shall be valid unless made in
writing, duly executed by both parties.
18. Waiver. No failure on the part of any
party to exercise or delay in exercising any right hereunder shall be deemed a
waiver thereof or of any other right, nor shall any single or partial exercise
preclude any further or other exercise of such right or any other right.
19. Governing Law. This Agreement, and
the legal relations between the parties, shall be governed by and construed in
accordance with the laws of the State of Connecticut without regard to conflicts
of law doctrines and any court action arising out of this Agreement shall be
brought in any court of competent jurisdiction within the State of
Connecticut.
20. Withholding. All compensation payable
hereunder, including salary and other benefits, shall be subject to applicable
taxes, withholding and other required, normal or elected employee
deductions.
21. Counterparts. This Agreement and any
amendment hereto may be executed in one or more counterparts. All of such
counterparts shall constitute one and the same agreement and shall become
effective when a copy signed by each party has been delivered to the other
party.
22. Headings. Section and other headings
contained in this Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date and year first above written.
THE COMPANY
PHOTRONICS, INC.
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Senior Vice President, General Counsel and Secretary
EXECUTIVE
/s/ Xxxxxxxxxxx
Xxxxxxx
Name:
Xxxxxxxxxxx Xxxxxxx
Address:
0000 Xxxxxxxx Xxxxx, Xxxxx, Xxxxx 00000
EXHIBIT A
RELEASE
1. I signed an Employment Agreement with Photronics, Inc. (the
"Company"), dated ________________ (the "Agreement"), wherein I agreed to the
terms applicable to certain terminations of employment with the Company.
Pursuant to the terms of the Agreement, I am entitled to certain severance
payments and benefits, described in the Agreement, provided that I sign this
Release.
2. In consideration of the severance payments described in the
Agreement, I, on behalf of myself, my heirs, agents, representatives,
predecessors, successors and assigns, hereby irrevocably release, acquit and
forever discharge the Company and each of its respective agents, employees,
representatives, parents, subsidiaries, divisions, affiliates, officers,
directors, shareholders, investors, employees, attorneys, transferors,
transferees, predecessors, successors and assigns, jointly and severally (the
"Released Parties") of and from any and all debts, suits, claims,
actions, causes of action, controversies, demands, rights, damages, losses,
expenses, costs, attorneys' fees, compensation, liabilities and obligations
whatsoever, suspected or unsuspected, known or unknown, foreseen or unforeseen,
arising at any time up to and including the date of this Release, save and
except for the parties' obligations and rights under this Release. In
recognition of the consideration set forth in the Agreement, I hereby release
and forever discharge the Released Parties from any and all claims, actions and
causes of action, I have or may have as of the date of this Release arising
under any federal, state, or local statute, regulation, ordinance, or law of any
kind, including under the Age Discrimination in Employment Act of 1967, as
amended, and the applicable rules and regulations promulgated thereunder
("ADEA"), the Connecticut Human Rights and Opportunities Law, the Connecticut
Family and Medical Leave Law, and the Connecticut Age Discrimination and
Employee Insurance Benefits Law, and including claims for wrongful discharge,
breach of contract, or in tort.
3. I agree not to criticize, denigrate, or otherwise disparage the
Company or any other Released Party.
4. This Release is not an admission of guilt or wrongdoing by
either me or the Company. This Release constitutes the entire agreement
between me and the Company with respect to the subject matter hereof, and I am
not signing this Release in reliance on any representation not expressly set
forth herein. No provisions of this Release may be modified, waived,
amended or discharged except by a written document signed by me and a duly
authorized Company representative. This Release binds my heirs,
administrators, representatives, executors, successors, and assigns, and will
inure to the benefit of all Released Parties and their respective heirs,
administrators, representatives, executors, successors, and assigns. The
invalidity or unenforceability of any provision of this Release shall not affect
the validity or enforceability of any other provision of this Release, which
shall remain in full force and effect. A waiver of any conditions or
provisions of this Release in a given instance shall not be deemed a waiver of
such conditions or provisions at any other time. If any of the provisions,
terms or clauses of this Release are declared illegal, unenforceable or
ineffective in a legal forum, those provisions, terms and clauses shall be
deemed severable, such that all other provisions, terms and clauses of this
Release shall remain valid and binding upon both parties. If any of the
provisions, terms or clauses of this Release are found by a court to be overly
broad, those provisions, terms and clauses shall be enforceable (and modified
and enforced) to the broadest extent permissible under the law. The
validity, interpretation, construction, and performance of this Release shall be
governed by the internal laws of the State of Connecticut (excluding any that
mandate the use of another jurisdiction's laws)
5. All payments to me under this Release shall be net of
applicable withholdings and deductions.
6. The Company advised me to take this Release home, read it, and
carefully consider all of its terms before signing it. The Company gave me
at least 21 days in which to consider this Release, and I waive any right I
might have to additional time beyond this consideration period within which to
consider this Release. The Company advised me to discuss this Release with
my own attorney (at my own expense) during this period if I wished to do
so. I understand that I may revoke my acceptance of this Release within
seven (7) days after I sign it ("Revocation Period"). I understand that if
I revoke my acceptance of this Release, I will not be entitled to any payments
or benefits hereunder or otherwise in connection with the termination of my
employment with the Company, except as required by law in the absence of the
Agreement and this Release. I have carefully read this Release, fully
understand what it means, and am entering into it voluntarily.
____________________ ______________
Print
Name Date
____________________
Signature
