AGREEMENT
Agreement made as of April 26, 1995, by and between
Photronics, Inc., a Connecticut corporation having its principal
offices at 1061 East Indiantown Road, Jupiter, Florida 33477 (the
"Company") and ______________, _________________, ________,
________________ (the "Owner").
WHEREAS, the ____________________ (the "Executive) serves as
an Executive Officer of the Company; and
WHEREAS, the Company and the Owner desire to enter into an
agreement whereby the Company will provide certain insurance and
other benefits on the life of the Executive.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement, the Company and the Owner
hereby agree as follows:
I - DEFINITION OF TERMS AND CONSTRUCTION
A) Definitions:
(1) "Owner" shall mean the owner of the Policy.
(2) "Policy" shall mean the life insurance policy on the life of
the Executive owned by the Owner which is purchased with premiums
paid by the Company.
(3) "Board of Directors" shall mean the Board of Directors of the
Company.
(4) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute.
(5) "Effective Date" shall mean the date hereof.
B) Plurals:
Where appearing in this Agreement, the singular shall include
the plural, and vice-versa, unless the context clearly indicates a
different meaning.
C) Headings:
The headings and sub-headings in this Agreement are inserted
for the convenience of reference only and are to be ignored in any
construction of the provisions hereof.
II - PAYMENT OF PREMIUMS
The Company agrees that provided the Executive remains in the
employ of the Company, the Company will timely pay $______ each
year for insurance premiums (the "Premiums") under the Policy for
a period of ten (10) years from the Effective Date. If the
Executive leaves the employ of the Company (including as a result
of a discharge by the Company), the Company shall have no further
obligations to make payments pursuant to this Article II, except as
set forth in Article IV, below. Except as provided in Article IV,
below, in the event the Executive shall only be in the employ of
the Company for a portion of any year during the ten (10) year
period referred to above, the obligation of the Company to pay
premiums for that year shall be pro-rated based on the number of
whole or partial months the Executive was employed for that year
divided by twelve (12).
III - REPAYMENT OF PREMIUMS
The Owner shall assign to the Company, in accordance with the
form of assignment attached hereto (the "Assignment"), the right to
the proceeds and cash value of the Policy to the extent of Premiums
paid by the Company. The Owner shall have all other rights to the
Policy except that the Owner shall not surrender or cancel the
Policy or withdraw any cash value of the Policy unless and until
the Company's right to receive a refund of Premiums paid has been
satisfied or waived; provided further, however, that nothing
contained herein shall require the Owner or the Executive to pay
any premiums under the Policy. The Company's right to receive a
repayment of Premiums paid shall be limited to the proceeds and
cash value of the Policy and shall be non-recourse to the Owner and
the Executive.
IV - RETIREMENT
In the event the Executive retires from the employ of the
Company, the Company agrees that it shall continue paying Premiums
for that number of years equal to the number of complete years of
service with the Company completed by the Executive since the date
of this Agreement but for not more than five (5) years or the
remaining portion of term set forth in Article II, above, whichever
is less; provided that, if the Executive shall be engaged in any
activities which are competitive with the Company, which activities
continue after written notice from the Company, the Company shall
have no further obligation to pay any Premiums under this
Agreement. In order to retire from the Company, the Executive must
be at least 55 years of age, have been employed by the Company for
at least 20 years and have been employed by the Company for at
least three (3) years since the date of this Agreement. In the
event the Executive retires and has been employed by the Company
for at least three (3) years since the date of this Agreement, the
Company agrees that it shall waive, upon such retirement, its right
to receive a refund of Premiums in accordance with Article III.
V - TERMINATION OF EMPLOYMENT
In the event the Executive leaves the employ of the Company
for any reason (including discharge by the Company), except for
retirement in accordance with Article IV, above, the Company
reserves the right, and the Owner assigns to the Company, the right
to cancel the Policy in order to obtain a repayment of Premiums
paid from the cash value of the Policy. Any cash value in excess
of the Premiums shall belong to the Owner.
VI - BENEFICIARY/DIVIDENDS
Except as set forth in Article III above, or Article VII
below, the Owner shall have the right to designate the beneficiary
of the Policy. The Owner agrees that so long as the Company's
right to receive a refund of Premiums paid has not been satisfied
or waived, all dividends declared on the Policy shall be applied to
purchase additional paid up insurance on the life of the Executive
unless the Company consents to another application.
VII - RIGHTS TO THE PROCEEDS AT DEATH
Upon the death of the Executive while this Agreement is in
force, the Owner will, without delay, take whatever action is
necessary and required to collect the total death proceeds payable
under the Policy from the insurer. Proceeds of the Policy equal to
the Premiums paid by the Company shall be paid to the Company by
the insurer unless repayment of the Premiums have been waived by
the Company. The balance of the proceeds of the Policy shall be
paid to the beneficiary of the Policy by the insurer.
VIII - AMENDMENTS
(1) The Company and the Executive may, by a written instrument
signed by both such parties, amend this Agreement at any time and
in any manner.
(2) The Company reserves the right to amend, in whole or in part,
and in any manner, any or all of the provisions of this Agreement
by action of its Board of Directors for the purposes of complying
with any provision of the Code or any other technical or legal
requirements, provided that no such amendment shall reduce the
amount of the Premiums to be paid by the Company.
IX - RELEASE
At any time, the Owner shall have the right to pay cash to the
Company in an amount equal to the Premiums paid by the Company in
exchange for the Company's interest in such Policy. In such event,
the Company shall transfer its interest in such Policy to the
Owner. Upon release by the Company of all of its interest in such
Policy, the Owner will thereafter own such Policy free from the
Assignment and from this Agreement.
X - MISCELLANEOUS
A) Rights of Creditors:
Neither the Owner, the Executive nor any other persons shall
have any interest in any Premiums to be paid by the Company or in
amounts to be paid to the Company under the Policy by the insurer,
such amounts being subject to the claims of the Company's general
creditors.
B) Agents:
The Company may employ agents and provide for such clerical,
legal, actuarial, accounting, advisory or other services as it
deems necessary to perform its duties under this Agreement. The
Company shall bear the cost of such services and all other expenses
it incurs in connection with the administration of this Agreement.
C) Liability and Indemnification:
Except for its own gross negligence, willful misconduct or
willful breach of the terms of this Agreement, the Company shall be
indemnified and held harmless by the Owner against liability or
losses occurring by reason of any act or omission of the Company or
any other person.
D) Cooperation of Parties:
All parties to this Agreement and any person claiming any
interest hereunder agree to perform any and all acts and execute
any and all documents and papers which are necessary or desirable
for carrying out this Agreement or any of its provisions.
E) Governing Law:
This Agreement is made and entered into in the State of
Florida and all matters concerning its validity, construction and
administration shall be governed by the laws of the State of
Florida.
F) Non-Guarantee of Employment:
Nothing contained in this Agreement shall be construed as a
contract or guarantee of employment between the Company and the
Executive.
G) Counsel:
The Company may consult with legal counsel with respect to the
meaning or construction of this Agreement, its obligations or
duties hereunder or with respect to any action or proceeding or any
question of law, and it shall be fully protected with respect to
any action taken or omitted by it in good faith pursuant to the
advice of legal counsel.
H) Notices:
For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered
personally or mailed by United States registered or certified mail,
return receipt requested, postage prepaid, or by nationally
recognized overnight delivery service providing for a signed return
receipt, addressed to the Executive at the home address set forth
in the Company's records and to the Company at the address set
forth on the first page of this Agreement, provided that all
notices to the Company shall be directed to the attention of the
Board of Directors, or, where appropriate, to the Company's
Personnel Department, or to such other address as either party may
have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only
upon receipt.
I) Entire Agreement:
This Agreement contains the entire understanding between the
Company and the Owner with respect to the payment of Premiums or
repayment of Premiums.
J) Severability:
In the event any one or more provisions of this Agreement are
held to be invalid or unenforceable, such illegality or
unenforceability shall not affect the validity or enforceability of
the other provisions hereof and such other provisions shall remain
in full force and effect unaffected by such invalidity or
unenforceability.
K) Execution in Counterparts:
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above
written.
PHOTRONICS, INC.
By: _________________________
Name:
Title:
_________________________
The undersigned, the Executive named in the above agreement,
consents to the issuance of the Policy.
______________________________
ASSIGNMENT OF LIFE INSURANCE DEATH BENEFIT
AS COLLATERAL
(Execute in duplicate)
A) For value received, the undersigned hereby assigns, transfers
and sets over to PHOTRONICS, INC., its successors or assigns,
(herein called the Assignee") the death benefit under Policy No.
_________, issued by Massachusetts Mutual Life Insurance Company or
its MML affiliated Insurance Company (herein called the "Insurer";
the identity of the Insurance Company is determined by the policy
number) and any supplementary contracts issued in connection
therewith (said policy and contracts being herein called the
"Policy"); upon the life of __________________________ and the
right to surrender the Policy subject to all of the terms and
conditions of the Policy and to all superior liens, if any, which
the Insurer may have against the Policy. The undersigned by this
instrument agrees and the Assignee by the acceptance of this
assignment agrees to the conditions and provisions herein set
forth.
B) It is understood and agreed that the Assignee shall have the
right to collect from the Insurer the net proceeds of the Policy
when it becomes a claim by death or maturity and the right to
surrender the Policy and that all other rights under the Policy,
including, by way of illustration and not limitation, the right to
make the Policy loans, the right to designate and change the
beneficiary, and the right to elect and to receive dividends are
reserved exclusively to the owner of the Policy and are excluded
from this assignment and do not pass by virtue hereof and may be
exercised by the owner on the sole signature of the owner;
provided, further however, that the owner of the Policy shall not
make any Policy loans or change the manner in which dividends are
received or applied without the written consent of the Assignee.
Nothing herein shall affect funds, if any, now or hereafter held by
the Insurer for the purpose of paying premiums under the Policy.
C) The Assignee covenants and agrees with the undersigned as
follows:
1) That any balance of sums received hereunder from the
Insurer remaining after payment of the then existing Liabilities,
matured or unmatured, shall be paid by the Assignee to the persons
entitled thereto under the terms of the Policy had this assignment
not been executed.
2) That the Assignee, not having any right to obtain
policy loans from the Insurer, will not take any steps to borrow
against the Policy, except that the owner of the Policy MAY direct
the Insurer to pay the proceeds of any Policy loan to the Assignee,
in which event the Assignee shall reduce the amount of existing
Liabilities by the amount of such Policy loan and interest accrued
to the date such Policy loans are repaid by the Assignee.
3) That the Assignee will upon request forward without
unreasonable delay to the Insurer the Policy for endorsement of any
designation or change of beneficiary or any election of an optional
mode of settlement; provided, however, that any such designation,
change or election shall be made subject to this assignment and to
the rights of the Assignee hereunder.
4) That, upon surrender of the Policy or any portion
thereof or upon the surrender of any or all of the paid-up
additions standing to the credit of the Policy, if any, by the
undersigned at any time before any death benefit is payable under
the Policy, the Assignee shall have the right to collect such
surrender proceeds of the Policy or any such surrender value of
such paid-up additions up to the amount of the Liabilities and any
balance shall be paid to the owner of the Policy.
D) This assignment of the life insurance death benefit under the
Policy is made as collateral security for all liabilities of the
undersigned, or any of them, to the Assignee, either now existing
or that may hereafter arise with respect to premiums advanced for
or paid on the Policy by the Assignee (all of which liabilities
secured or to become secured are herein called "Liabilities").
E) The Insurer is hereby authorized to recognize the Assignee's
claim hereunder. In the event any death benefit, surrender value,
cash value or other proceeds of the Policy are to be paid, the
Insurer shall request a joint statement from the Assignee and the
undersigned of the allocation of such proceeds. Separate checks in
accordance with such joint statement shall be issued by the Insurer
and shall constitute full disclosure and release therefor to the
Insurer. In the event the Assignee and the undersigned do not
agree to a joint schedule, the Insurer shall have the right to
place such proceeds in an escrow account for the benefit of
Assignee and the undersigned, as their interests may appear, and
the Escrow Agent shall hold such proceeds until the matter is
settled, either by mutual consent or a final binding judgment which
is no longer appealable.
F) The Assignee may take or release other security, may release
any party primarily or secondarily liable for any of the
Liabilities, may grant extensions, renewals or indulgences with
respect to the Liabilities, or may apply to the Liabilities in such
order as the Assignee shall determine, the insurance death benefit
payable under the Policy hereby assigned without resorting or
regard to other security.
G) In the event of any conflict between the provisions of this
assignment and provisions of the note or other evidence of any
Liability, with respect to the Policy or rights of collateral
security therein, the provisions of this assignment shall prevail.
H) The undersigned declares no proceedings in bankruptcy are
pending against him and that his property is not subject to any
assignment for the benefit of creditors.
Signed and sealed this _________________ day of ___________, 19__.
____________________________ __________________________
Witness Owner
____________________________ ___________________________
Address Address
ACCEPTANCE OF ASSIGNMENT ___________________________
Date
ATTEST (TYPE/PRINT NAME OF ASSIGNEE)
(SEAL) ___________________________
BY:__________________________ BY:________________________
Signature and Title Signature and Title
RELEASE OF ASSIGNMENT
For Value Received, the Policy and all claims thereunder
conveyed by the within assignment are hereby released.
PHOTRONICS, INC.
By:___________________________
Title:________________________
Date:_________________________