Exhibit 10.30
SEPARATION AND
CONSULTING AGREEMENT
Photronics, Inc., its subsidiaries and affiliates (the "
Company ") and I, Michael J. Luttati, agree as follows:
1. Resignation of Employment, Directorship. I
hereby resign my employment and all positions as an officer and
director with the Company effective as of July 21, 2008 (the "
Effective Date "). On the Company's next regular pay
day, I will receive my last pay check. My resignation of
employment will be treated as a termination "without Cause" for
purposes of Section 5(d) of the Employment Agreement between the
Company and me, dated May 12, 2005 (the " Employment
Agreement ").
2. Separation Benefits . In consideration for
my execution of this Agreement and the promises I made herein, and
provided that I do not revoke the Agreement during the Revocation
Period (as defined in Section 11 below) or otherwise give the
Company reason to stop such payments and benefits under Section 9
below, the Company will provide the following (but will not provide
any other benefits or payments to me):
(a) Pay
me, during the period commencing on the Effective Date and ending
on the six-month anniversary of the Effective Date (the "
Initial Continuation Period "), an amount equal to the
lesser of (i) my base salary (at the current rate of $513,000 per
annum) (" Base Salary ") that I would have received had I
remained employed through expiration of the Initial Continuation
Period and (ii) $460,000 (the " Initial Severance ").
Payment of the Initial Severance will commence in equal
installments immediately following the expiration of the Revocation
Period through the remainder of the Initial Continuation Period in
accordance with the Company's payroll practices in effect on the
Effective Date. The Initial Severance is intended to
constitute a " separation pay plan " for purposes of Section
409A of the Internal Revenue Code of 1986, as amended, and
applicable regulations and guidance promulgated thereunder ("
Code Section 409A ").
(b) Pay
me, during the period commencing on the first day following the
expiration of the Initial Continuation Period and ending on the
18-month anniversary of the Effective Date (the " Additional
Continuation Period ", and together with the Initial
Continuation Period, the " Continuation Period "), an amount
equal to the difference between (i) the Base Salary that I
would have received had I remained employed through expiration of
the Additional Continuation Period and (ii) the Initial Severance
(the " Additional Severance "); provided that in the
event a " Change of Control " of the Company (as such term
is defined in Section 5(e)(i) of the Employment Agreement) occurs
prior to the expiration of the Consulting Period (as defined in
Section 5 below), the Additional Continuation Period will instead
expire on the second anniversary of the Effective Date. The
Additional Severance will be paid in equal installments through
expiration of the Additional Continuation Period in accordance with
the Company's payroll practices in effect on the Effective
Date.
(c) Contribute
to the cost of my monthly premiums to continue my health and dental
insurance coverage under COBRA during the period commencing on the
expiration of the Revocation Period and ending on the 360
th day following the expiration of the Revocation
Period, at the same level it contributes to the premium of active
employees.
(d) Permit
me, to the extent permitted by applicable law and the terms of the
plan, to retain my Company provided life insurance policy.
(e) Permit
me to purchase my Company-provided automobile (the " Company
Automobile ") at the book value of $24,429.
(f) Pay
me $40,000 for reasonable outplacement and relocation benefits (the
"Outplacement Payment"); provided that the Company will have the
right to offset the value of the Company Automobile from the
Outplacement Payment. The Outplacement Payment will be paid
to me in a lump sum payment within ten (10) days following
expiration of the Revocation Period.
(g) Permit
me to exercise any of my outstanding Company stock options which
are vested as of the Effective Date until the expiration of the
Exclusivity Period (as such term is defined in Section 8 of the
Employment Agreement). Company options that have not vested
as of the Effective Date shall terminate as of the Effective Date.
I acknowledge and agree a complete and accurate statement of
my Company stock options has been provided to me under separate
cover prior to the date hereof.
(h) Permit
me to continue to vest in my outstanding Company restricted stock
in accordance with the original vesting schedule during the
Consulting Period. In the event a Change of Control of the
Company occurs prior to the expiration of the Consulting Period,
all Company restricted stock granted to me shall immediately vest
as of the date of the Change of Control. Any Company
restricted stock that remains unvested at the expiration of the
Consulting Period shall be forfeited. I acknowledge and agree
a complete and accurate statement of my Company restricted stock
has been provided to me under separate cover prior to the date
hereof.
3. Release of Claims .
(a)
General Release . In consideration of the payments and
benefits provided to me under this Agreement, I, on behalf of
myself, my heirs, agents, representatives, predecessors, successors
and assigns (the " Releasors "), 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("
Claims "), save and except for the parties' obligations and
rights under this Agreement and the Surviving Obligations (as
defined in Section 4 below).
(b)
Specific ADEA Release . In recognition of the consideration
set forth in this Agreement, the Releasors hereby release and
forever discharge the Released Parties from any and all Claims, the
Releasors have or may have arising under any state or federal civil
rights or human rights law, or under the Federal Age Discrimination
in Employment Act of 1967, as amended, and the applicable rules and
regulations promulgated thereunder (" ADEA "). By signing
this Agreement, I hereby acknowledge and confirm the following: (a)
I was advised in writing by the Company in connection with my
termination to consult with an attorney of my choice prior to
signing this Agreement, including without limitation, the terms
relating to my release of claims arising under ADEA and any other
law, rule or regulation referred to above; (b) I was given a period
of not fewer than 21 days to consider the terms of this Agreement
and to consult with an attorney of my choosing with respect hereto;
and (c) I am providing the release and discharge set forth in this
Section 3(b) only in exchange for consideration in addition to
anything of value to which I was already entitled.
(c)
No Assignment or Current Claims . I hereby represent and
warrant that I have neither assigned any of the Claims being
released under this Section 3 nor instituted, assisted or otherwise
participated in connection with, any action, complaint, claim,
charge, grievance, arbitration, lawsuit, or administrative agency
proceeding, or action at law or otherwise against any the Company
or any of its officers, employees, directors, shareholders or
agents.
4. Prior Agreements . This Agreement sets
forth the entire agreement and understanding of the parties hereto
with respect to the matters covered hereby and supersedes and
replaces any express or implied, written or oral, prior agreement,
plan or arrangement with respect to the terms of the Executive's
employment and the termination thereof which the Executive may have
had with the Company Group (including, without limitation, the
Employment Ag
