Exhibit 10.23
AMENDED AND RESTATED
CHANGE IN CONTROL AGREEMENT
This Amended and Restated Change in Control Agreement (the “Agreement”) is made as of September 6, 2022, by and between Universal Display Corporation (the “Company”), and Brian Millard (“Employee”).
WHEREAS, the Company believes that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of Employee to the Company without distraction notwithstanding the fact that the Company could be subject to a “Change in Control” (as hereinafter defined), and that such possibility, and the uncertainty and questions which it may raise among management, may result in the departure or distraction of key management personnel to the detriment of the Company;
WHEREAS, in consideration for Employee agreeing to continue in employment with the Company and its affiliate and agreeing to keep Company information confidential and not to compete with the Company (as hereinafter defined), the Company agrees that Employee shall receive the compensation set forth in this Agreement as a cushion against the financial and career impact on Employee in the event Employee’s employment with the Company is involuntarily terminated in connection with a Change in Control; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:
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Upon the occurrence of a Change in Control as provided above, no subsequent event or condition shall constitute a Change in Control for purposes of this Agreement, with the result that there can be no more than one Change in Control hereunder.
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Notwithstanding the foregoing, no such payments, benefits or services shall be made or provided (except as may be required by law) unless Employee executes, and does not revoke, a written release, substantially in the form attached hereto as ANNEX I (the “Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of Employee’s employment by the Company or its affiliates (other than any entitlements under the terms of this Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued or become entitled to a benefit), or the termination thereof.
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If to the Company, to: | |
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| Universal Display Corporation 250 Phillips Boulevard Ewing, New Jersey 08618 Attention: President and Chief Executive Officer |
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If to Employee, to Employee’s address of record with the Company |
or to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other in the manner specified in this Section 16; provided, however, that if no such notice is given by the Company following a Change in Control, notice at the last address of the Company or to any successor pursuant to this Section 16 shall be deemed sufficient for the purposes hereof. Any such notice shall be deemed delivered and effective when received in the case of personal delivery, five (5) days after deposit, postage prepaid, with the U.S. Postal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.
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EMPLOYEE REPRESENTS AND ACKNOWLEDGES THAT (I) HE OR SHE HAS BEEN ADVISED BY THE COMPANY TO CONSULT HIS OR HER OWN LEGAL COUNSEL IN RESPECT OF THIS AGREEMENT, AND (II) THAT HE OR SHE HAS HAD FULL OPPORTUNITY, PRIOR TO EXECUTION OF THIS AGREEMENT, TO REVIEW THOROUGHLY THIS AGREEMENT WITH HIS OR HER COUNSEL.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.
| UNIVERSAL DISPLAY CORPORATION
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By: /s/ Steven V. Abramson
Name: Steven V. Abramson
Title: President and CEO
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/s/ Marilyn Caldwell Witness |
/s/ Brian Millard EMPLOYEE |
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ANNEX I
SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE
WHEREAS <Insert Name> (“Employee”) has been employed by Universal Display Corporation (the “Company”) and its affiliate, UDC, Inc., and because the Employee’s employment with the Company terminated or will terminate effective as of ____________________ (the “Effective Termination Date”), Employee and the Company agree as follows:
In consideration of the promises of the Company set forth in paragraph 3 below, Employee, and his or her heirs, executors and administrators, intending to be legally bound, hereby permanently and irrevocably agrees to the termination of Employee’s employment with the Company as of the Effective Termination Date, and hereby REMISE, RELEASE and FOREVER DISCHARGE the Company and any individual or organization related to the Company against whom or which Employee could assert a claim, including any and all affiliates, and their officers, directors, shareholders, partners, employees and agents, together with their respective successors and assigns, heirs, executors and administrators (hereinafter referred to collectively as the “Releasees”), of and from any and all causes of action, suits, debts, claims and demands whatsoever, which Employee had, has, or may have against Releasees up until the date of execution of this Separation of Employment Agreement and General Release, other than the Release Exclusions (as defined below). Particularly, but without limitation, Employee so releases all claims relating in any way to his employment or the termination of his employment relationship with the Company, including without limitation claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et al., Title VII of the Civil Rights Act of 1964, as amended, § 42 U.S.C. 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. § 1001 et seq., the Age Discrimination in Employment Act, as amended 29 U.S.C. § 621 et seq. (the “ADEA”), any common law claims and all claims for attorneys’ fees and costs.
Employee agrees and covenants that, should any other person, organization or other entity file, charge, claim, sue, or cause or permit to be filed any civil action, suit or legal proceeding involving any matter occurring at any time in the past, up to and including the date of execution of this Separation of Employment Agreement and General Release, Employee will not seek or accept any personal relief in such civil action, suit or legal proceeding. Moreover, Employee shall promptly take all steps necessary to dismiss, with prejudice, any and all pending complaints, charges and grievances against the Company or the Releasees, regardless of whether they are or have been filed internally or externally.
Notwithstanding anything to the contrary in this Separation of Employment Agreement and General Release, nothing herein relinquishes any rights Employee may have to the following claims, or to any civil actions, suits or legal proceedings involving such claims (the “Release Exclusions”): (i) claims to seek indemnification pursuant to applicable state law, the Company’s By-Laws, applicable Company resolutions, applicable Company employee benefit plans or other such documents maintained or required to be maintained by the Company, (ii) claims to seek coverage under directors’ and officers’ liability insurance policies maintained or required to be maintained by the Company, and (iii) claims to seek enforcement of Employee’s rights under the
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Change in Control Agreement between Employee and the Company (the “Change in Control Agreement”).
In full consideration of Employee’s execution of this Separation of Employment Agreement and General Release, and his or her agreement to be legally bound by its terms, the Company has agreed to provide Employee with the payments, benefits and other consideration specified in the Change in Control Agreement. Except as set forth in this Separation of Employment Agreement and General Release, or as may be required by applicable law, it is expressly agreed and understood that Releasees do not have, and will not have, any obligation to provide Employee, at any time in the future, with any payments, benefits or other consideration not specified in the Change in Control Agreement.
Employee hereby agrees and recognizes that, as of the Effective Termination Date, Employee’s employment relationship with the Company will be permanently and irrevocably severed. Accordingly, Employee will not apply for a position with the Company or any of its affiliates and Employee waives his or her right to be hired or rehired in the future by the Company or any of its affiliates. It is further agreed and understood that Employee will continue to be available and cooperate in a reasonable manner in providing assistance to the Company in concluding any matters which are reasonably related to the duties and responsibilities which Employee had while employed by the Company, provided that such cooperation and assistance does not interfere with any subsequent employment obtained by Employee.
Employee agrees and acknowledges that this Separation of Employment Agreement and General Release is not and shall not be construed to be an admission of any violation by the Releasees of any federal, state or local statute or regulation, or of any duty owed by the Releasees to Employee or any other person.
Employee agrees, covenants and promises that Employee will not communicate or disclose the terms of this Separation of Employment Agreement and General Release to any persons with the exception of members of Employee’s immediate family and Employee’s attorneys and financial advisors, except as may be required by applicable law.
Employee hereby certifies that Employee has read the terms of this Separation of Employment Agreement and General Release, that Employee has been advised by the Company to consult with an attorney of his or her own choice prior to executing this Separation of Employment Agreement and General Release, that Employee has had an opportunity to do so, and that Employee understands the terms and effects of this Separation of Employment Agreement and General Release. Employee further certifies that neither the Releasees, nor any representative of Releasees, have made any representations to Employee concerning this Separation of Employment Agreement and General Release other than those contained herein.
Employee acknowledges that Employee has been informed that this Separation of Employment Agreement and General Release includes a waiver of claims under the ADEA, and that Employee has the right to reconsider this Separation of Employment Agreement and General Release as it pertains to claims under the ADEA for a period of twenty-one (21) days (or forty-five (45) days in the event of a group termination). Employee also understands that he or she has the right to revoke this Separation of Employment Agreement and General Release in its entirety for a period of seven (7) days following Employee’s execution thereof. Should Employee desire to exercise any of the foregoing rights, Employee shall do so by providing written notice to the
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Company within the applicable period at the following address: Universal Display Corporation at 375 Phillips Boulevard, Ewing, New Jersey 08618, Attention: President.
This Separation of Employment Agreement and General Release, together with the Change in Control Agreement, constitute the complete and entire understanding between the parties relating to the subject matter of such documents, and supersede any and all prior agreements and understandings between the parties relating thereto. If any provision of this Separation of Employment Agreement and General Release is deemed invalid, the remaining provisions shall not be affected. The provisions of this Separation of Employment Agreement and General Release shall be governed by the laws of New Jersey, without giving effect to any conflict of laws provisions.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Employee has executed this Separation of Employment Agreement and General Release as of the date indicated below.
EMPLOYEE | _________________ Date |
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Acknowledgment of Receipt by: | UNIVERSAL DISPLAY CORPORATION
By:
Name:
Title:
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