Exhibit 10(oo)
EMPLOYMENT AGREEMENT
AGREEMENT (the "Agreement") dated this November 19, 2003 made by and
between Presstek, Inc., a Delaware corporation, its parents, subsidiaries,
divisions, or affiliated entities, successors and assigns (the "Employer"), and
Xxxxxx X. Xxxxxx (the "Employee").
WHEREAS, the Employee is currently employed as Chief Executive Officer
and President of the Employer and a member of its Board of Directors of the
Employer and both the Employer and the Employee now wish for the Employee to
continue to be employed as Chief Executive Officer and President of the
Employer; and
WHEREAS, the Employee wishes to continue his employment with the
Employer and the Employer wishes to continue its employment of the Employee
under the terms of this Agreement on the date this Agreement is executed by the
parties as set forth above.
NOW, THEREFORE, in consideration of the promises hereafter contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto AGREE as follows:
1. Consideration. In consideration for the Employee's execution of this
Agreement, the Employer agrees that the Employee's employment shall continue as
set forth in this Agreement, the Employee shall be permitted access to the
Employer's confidential information and trade secrets and the Employee shall be
eligible to receive post-Term Severance Payments (Section 9) or the Change in
Control payment (Section 12) as set forth in this Agreement (subject to his
compliance with Sections 10 and 11 of this Agreement). The Employee understands,
acknowledges and agrees that the Employee would not receive the consideration
specified in this Section 1, except for the Employee's execution of this
Agreement and the fulfillment of the promises contained herein.
2. Employment. Commencing from the date of this Agreement as set forth
above (the "Start Date"), the Employee shall continue his employment as Chief
Executive Officer and President of the Employer under this Agreement and shall
continue to serve as a member of the Board of Directors of the Employer through
the Term of this Agreement. The Employee shall render executive, policy,
operations and other management services to the Employer of the type customarily
performed by persons situated in similar executive and management capacities.
The Employee shall perform such other related duties as the Board of Directors
of the Employer may from time to time reasonably direct. In the event that
Employee's employment with the Employer is terminated under this Agreement for
any reason, the Employee shall immediately cease serving as a member of the
Board of Directors; provided, however, that the Employer may elect to continue
the Employee's membership on the Board of Directors in its sole and absolute
discretion.
3. Employment Term. "Term," as used in this Agreement, shall refer to the
Term of this Agreement as defined in this Section. The Term of the employment
under this Agreement shall commence on the Start Date and shall initially end
three years thereafter, on the day preceding the third anniversary of the Start
Date, unless terminated sooner in accordance with the provisions hereof. The
Term of employment under this Agreement shall, on each anniversary of the Start
Date thereafter (commencing with the third anniversary of the Start Date), be
automatically extended for an additional year unless the Employer or the
Employee gives written notice to the other, at least 180 days prior to such
anniversary date, that he or it does not concur in such extension. If neither
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party gives notice of non-concurrence in such extension, the Term will be
automatically extended for an additional year, unless terminated sooner in
accordance with the provisions hereof.
4. Compensation. The Employer agrees to pay the Employee during the Term
of this Agreement an annual base salary equal to THREE HUNDRED AND FIFTY
THOUSAND U.S. DOLLARS AND ZERO CENTS ($350,000) with the salary to be reviewed
no less than annually during the Term of this Agreement by the Board of
Directors or Compensation Committee of the Employer. In the annual salary
review, the Board of Directors may compensate the Employee for increases in the
market value of the Employee's duties and responsibilities hereunder and may
provide for performance or merit increases. The base salary of the Employee
shall not be decreased at any time during the Term of this Agreement from the
amount then in effect, unless the Employee otherwise agrees in writing. The
salary shall be payable to the Employee not less frequently than monthly. All
payments and benefits in this Agreement shall be subject to all applicable
federal, state and local withholding, payroll and other taxes.
Participation in discretionary bonuses, retirement and other employee
benefit plans and fringe benefits shall not reduce the salary payable to the
Employee under this Section 4.
5. Discretionary Bonuses. During the Term of this Agreement, the Employee
may be entitled to receive an annual cash bonus of up to 30% of the Employee's
then annual base salary, based on the Employee's contribution to the
accomplishment of key annual corporate objectives mutually determined by the
Employee and the Employer. The determination of whether to pay a discretionary
bonus, and the amount of the bonus, if any, shall be made by the Employer in its
sole and absolute discretion. During the Term of this Agreement, the Employee
also may be entitled to participate on the same terms and conditions as other
similarly situated eligible executive employees of the Employer in any other
incentive compensation and bonus programs authorized and declared by the Board
of Directors or Compensation Committee of the Employer for executive employees.
The determination of whether the Employee is eligible to participate in any such
incentive compensation and bonus programs, and the amount of incentive
compensation and bonus paid, if any, shall be made solely by the Employer. No
other compensation provided for in this Agreement shall be deemed a substitute
for the Employee's right to participate in such incentive compensation or bonus
programs when and as declared.
6. Participation in Retirement and Employee Benefit Plans; Fringe
Benefits.
Subject to the eligibility requirements that may be applicable, the
Employee may be entitled to participate during the Term in any plan or
arrangement of the Employer relating to stock purchases, pension, thrift, or
profit sharing benefits, or other benefits under qualified or non-qualified
deferred compensation plans, group life insurance, medical coverage, education
or any other employee benefits that the Employer may adopt or make available for
the benefit of the Employee or of similarly situated executive employees
generally.
The Employee may also be entitled during the Term of this Agreement to
any fringe benefits which may be or become available during the Term of this
Agreement to similarly situated executive employees of the Employer, and to the
payment or reimbursement of reasonable expenses for attending annual and
periodic meetings of trade associations, and any other benefits which are
commensurate with the duties and responsibilities to be performed by the
Employee under this Agreement.
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The Employer fully reserves its rights to change, modify or discontinue
any of its stock purchase, retirement, employee benefit or other fringe benefit
plans during the Term of this Agreement in its sole and absolute discretion, and
in accordance with applicable law.
7. Standards. The Employee shall perform his duties and responsibilities
under this Agreement in accordance with such reasonable standards as are
established from time to time by the Board of Directors of the Employer, in its
sole and absolute discretion.
8. Voluntary Absences; Vacations. The Employee shall be entitled to an
annual paid vacation during the Term of this Agreement of four (4) weeks per
year or such longer period as the Board of Directors may approve or such longer
periods to which the Employee may be entitled as an employee of the Employer.
The timing of paid vacations shall be scheduled in a reasonable manner by the
Employee.
9. Termination of Employment.
(a)(i) The Board of Directors of the Employer may terminate the
Employee's employment at any time, but any termination by the Board of Directors
other than termination for Cause (as defined in Section 9(a)(iii) below) shall
not prejudice the Employee's right to receive compensation and other benefits
under this Agreement, except as stated otherwise in this Agreement. In the event
of a termination for Cause, the Employee shall have no right to receive
compensation or other benefits, including payment of legal fees and expenses
incurred, for any period after termination for Cause except as otherwise
required by law. Regardless of the reason for the termination of the Employee's
employment, other than termination for Cause, the Employer shall continue to be
subject to any independent obligation to the Employee under any employee benefit
plan in which the Employee is then a participant.
(ii) In the event that the Employee's employment ceases by reason of
the Employer's termination of the Employee's employment during the Term other
than for Cause, the Employer shall be obligated in lieu and replacement of the
Employee's entitlement to any compensation and other benefits under this
Agreement pursuant to Section 9(a)(i), to make severance payments to the
Employee in an amount equal to the Employee's then current annual base salary
multiplied by a fraction, the denominator of which shall be 12 and the numerator
of which shall be the number of months remaining in the Term (collectively, the
"Severance Payments"). Notwithstanding the foregoing, if the Employee's
employment ceases by reason of the Employer's termination of the Employee's
employment other than for Cause, the amount paid in Severance Payments to the
Employee under this Section shall not be less than the Employee's annual base
salary for a period of one and one-half (1-1/2) years and shall not exceed the
Employee's then annual base salary for a period of two (2) years. The amount
paid in Severance Payments to the Employee under this Section shall be paid
after termination of employment in equal monthly installments according to the
Employer's normal payroll practices then in effect. However, if either party
provides the other party with written notice of the party's non-concurrence in
the automatic extension of the Term, as set forth in Section 3 of this
Agreement, notwithstanding the foregoing, the Employer shall make Severance
Payments under this Section for a period of one (1) year. However, if the
Employer's termination of the Employee's employment without Cause occurs in
connection with, or within one and one-half (1-1/2) years after, a "Change in
Control" as defined in Section 12(b) hereof, the amount payable to the Employee
shall be determined exclusively under Section 12(a) as limited by Section 12(c)
hereof, and the Employer shall not be required to make the payments set forth in
this Section. The Severance Payments under this Section 9(a)(ii) shall not be
reduced by any compensation which
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the Employee may receive for other employment with another employer after
termination of his employment with the Employer. In addition, the Employee shall
be entitled to have all existing retirement or employee benefits of the type
referred to in Section 6 hereof continued for the remainder of the Term when the
Agreement is terminated, except as otherwise required by law or provided in the
related retirement or other employee benefit plans or agreements.
Notwithstanding the foregoing, the Employer shall have no obligation to make any
contributions to any retirement plan applicable to the Employee after the date
the Employee ceases to be employed by the Employer. In the event of a retirement
plan, the Employee shall be entitled to contributions made by the Employer to
the retirement plan on the Employee's behalf prior to the date of the Employee's
termination, which have vested and for which the Employee is otherwise eligible
in accordance with the written terms of the official plan documents governing
any applicable retirement plan. The Employer shall have no obligation to make
the Severance Payments set forth in this Section unless the Employee fully
complies with his obligations under this Agreement, including, but not limited
to, his obligations under Sections 10 and 11 of this Agreement.
(iii) References in this Agreement to "termination for Cause" shall
mean termination on account of acts or omissions of the Employee which
constitute Cause as defined below. Any determination with respect to a
termination for Cause shall require the approval of the Board of Directors of
the Employer. "Cause" shall mean any of the following:
(A) conviction of a felony,
(B) theft from the Employer,
(C) breach of fiduciary duty involving personal profit,
(D) sustained and continuous conduct by the Employee
which adversely affects the reputation of the
Employer,
(E) continued failure of the Employee to substantially
and satisfactorily perform his duties or obligations
under this Agreement following twenty (20) days'
notice by the Employer to the Employee and a failure
by the Employee to correct the deficiency cited in
such notice (other than any such failure resulting
from the Employee's incapacity due to physical or
mental illness).
(b) The Employee shall have no right to terminate his employment
under this Agreement prior to the end of the Term of this Agreement, unless such
termination is either for Good Reason (as described in Section 12(a) hereof) in
connection with, or within one and one-half (1-1/2) years after, a Change in
Control or approved by the Board of Directors of the Employer. In the event that
the Employee violates this provision, or in the event that the Employee is
terminated for Cause, the Employee shall be entitled to no further payments
pursuant to this Agreement.
(c) The Employee's employment under this Agreement may also cease
prior to the end of the Term of this Agreement in the event of the Employee's
death or upon the Employee becoming "Totally Disabled." For purposes of this
Agreement, the Employee shall be "Totally Disabled" as of the date he becomes
entitled to receive disability benefits under the Employer's long term
disability plan. In the event that the Employee's employment is terminated by
his death or upon becoming "Totally Disabled," the Employee shall be entitled to
receive (i) any accrued but unpaid salary for services rendered to the date of
termination as determined pursuant to Section 4, (ii) any vacation accrued under
the Employer's policy to the date of termination, and (iii) any accrued but
unpaid
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expenses pursuant to Section 14 of this Agreement. The benefits to which the
Employee may be entitled upon termination pursuant to the plans and arrangements
referred to in Section 6 of this Agreement shall be determined and paid in
accordance with the terms of such plans and arrangements.
(d) The Employer shall have no obligation to make the payments set
forth herein if the Employee is in material breach of the Employee's obligations
under this Agreement. The Employee shall be obligated to execute a general
release of claims in favor of the Employer, its current and former parents,
subsidiaries, subdivisions, divisions, shareholders, Board of Directors, or
affiliated entities or persons, and the current and former directors, officers,
employees and agents of the Employer, in a form acceptable to the Employer (the
"Release"), as a condition to receiving the Severance Payments described above.
10. Confidential Information and Non-Competition.
(a) "Confidential Information" shall mean trade secrets
or confidential information relating to the Employer, its customers, affiliates
and their respective businesses, including, but not limited to, the identity of
the Employer's customers; the entity of distributors and suppliers of the
Employer; the identity of representatives responsible for entering into
contracts with the Employer; specific customer, distributor and supplier needs
and requirements; the details of contracts and proposals between the Employer
and its customers, distributors and suppliers; selling and marketing strategies,
prices, costs, and profit margins; the names, addresses and other contact
information of purchasing agents, vendors or other entities; purchasing
techniques, methods, procedures and processes, manufacturing and production
techniques, methods, procedures and processes; other techniques, methodologies
and processes used by the Employer in the conduct of its business; techniques,
methods, procedures, know-how, show-how, prototypes and technical
specifications; computer data, software, software codes, computer models,
research projects, data processing and other programs; production and
manufacturing equipment and operating practices; information with respect to
products and product formulae, designs, plans for future business, new business,
products or other developments; new or innovative ideas, customer proposals,
marketing plans and ideas, future developments or strategies; information
pertaining to research and development, acquisitions or divestitures, marketing
and sales, cost cutting, revenue generation, or other matters concerning the
Employer's planning and strategy; and other nonpublic financial and other
information of the Employer disclosed to or known by the Employee as a
consequence of or through the Employee's employment (or other service
relationship) with the Employer (including information conceived, originated,
discovered or developed by the Employee), which information is not generally
known in the relevant trade or industry or public knowledge. The Employee
acknowledges and agrees that the Confidential Information is not generally known
or available to the public, but has been developed, compiled or acquired by the
Employer at its great effort and expense. Confidential Information can be in any
form: oral, written or machine readable, including electronic files.
(b) The Employee acknowledges and agrees that the
Employer is engaged in a highly competitive business and that its competitive
position depends upon its ability to maintain the confidentiality of the
Confidential Information and Trade Secrets which were developed, compiled and
acquired by the Employer at its great effort and expense. The Employee further
acknowledges and agrees that any disclosure, divulging, revelation or use of any
of the Confidential Information, other than in connection with the Employer's
business or as specifically authorized by the Employer, will be highly
detrimental to the Employer, and that serious loss of business and goodwill and
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pecuniary damage may result therefrom. During the Employee's employment with the
Employer and thereafter, the Employee shall hold for the benefit of the
Employer, and not for the Employee's own benefit or disclosure to third parties,
all Confidential Information relating to the Employer and its business,
including all Confidential Information of customers of the Employer (i) obtained
by the Employee during the Employee's employment with the Employer and (ii) not
otherwise public knowledge or generally known in the trade or industry. The
Employee shall not, without the prior written consent of the Employer, unless
compelled pursuant to the order of a court or other governmental or legal body
having jurisdiction over such matter, communicate or divulge any such
Confidential Information to anyone other than the Employer and those designated
by it. In the event the Employee is compelled by order of a court or other
governmental or legal body to communicate or divulge any such Confidential
Information to anyone other than the Employer and those designated by it, the
Employee shall promptly notify the Employer of any such order and the Employee
shall cooperate fully with the Employer in protecting such information to the
extent possible under applicable law and will only disclose that portion of the
Confidential Information necessary to satisfy any such order.
(c) Upon termination of the Employee's employment with
the Company, or at any time the Company requests, all equipment, property,
documents, files, records, notes, memoranda, designs, reports, price lists, cost
sheets, prototypes, blue prints, technical specifications, estimates, databases,
home office equipment, automobiles, computer equipment, computer files, computer
programs, plans, other documents, and all other property and Confidential
Information of the Employer (including all copies in all forms in the Employee's
possession or control), whether prepared by the Employee solely or jointly with
others, shall be left with or promptly returned to the Employer and shall at all
times be the property of the Employer.
(d) The Employee acknowledges and agrees that the
Employer is engaged in a highly competitive business, and by virtue of the
Employee's position and responsibilities with the Employer, and the Employee's
access to Confidential Information, the Employee's engaging in any business
which is directly or indirectly competitive with the Employer will cause it
great and irreparable harm. During the period of employment as an officer and/or
employee of the Employer, the Employee will devote his available business time
and best efforts to promoting and advancing the business of the Employer. During
the Term of this Agreement and for the duration of the Severance Payments made
to the Employee in accordance with Section 9, or in the event of a Change in
Control in accordance with Section 12 for a period of two (2) years, the
Employee agrees that he or she will not, in any jurisdiction around the world in
which the Employer conducts business, whether alone or as a partner, officer,
director, consultant, agent, employee or stockholder of any company or other
commercial enterprise, engage in any business or other commercial activity which
is or may be competitive with the products and services being designed,
conceived, marketed, distributed or developed by the Employer at the time of
termination of such employment, unless written approval is obtained from the
Company's Board of Directors. Notwithstanding the foregoing, if either party
provides the other party with written notice of the non-concurrence in the
automatic extension of the Term, as set forth in Section 3 of this Agreement,
the duration of the restriction in this Section 12(d) shall be for the duration
of the Term and for a period of one (1) year from the date of expiration of the
Term. For purposes of this Section, competitive products and services shall be
defined to mean non-photographic imaging, computer-to-plate, direct-to-press,
thermal laser or chemistry-free printing plate technology products and services,
or any other products and services substantially similar to the products and
services designed, conceived, marketed, distributed or developed by the Employer
at the time of termination of the Employee's employment. The Employee
acknowledges, understands and agrees that accepting such competitive employment
would cause him to inevitably use,
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misappropriate and disclose the Employer's Confidential Information which the
Employee came to learn during his employment with the Employer.
(e) The Employee acknowledges and agrees that during the
course and solely as a result of the Employee's employment with the Employer,
the Employee has and will become aware of some, most or all of the customers of
the Employer, their names and addresses, their representatives responsible for
engaging the services of the Employer and their specific needs and requirements.
The Employee further acknowledges and agrees that the loss of such customers
will cause the Employer serious loss of business and will be detrimental to the
Employer's goodwill and will cause great and irreparable harm. During the Term
of this Agreement and for a period of two (2) years after termination of
employment (for any reason whatsoever), the Employee will not directly or
indirectly either for himself or for any other person or commercial enterprise
(1) divert or take away, or attempt to divert or take away, any of the
Employer's customers or business in existence at the time of termination of such
employment that the Employee had contact with, for whom the Employee performed
services during his employment with the Employer and/or that were made known to
the Employee by the Employer during his employment with the Employer; and/or (2)
solicit or attempt to solicit, ask for, accept, or seek to do business with, for
the purpose or effect of engaging in competition with the Employer, any of the
Employer's customers or business in existence at the time of termination of such
employment with whom the Employee had contact, for whom the Employee performed
services during his employment with the Employer and/or that were made known to
the Employee by the Employer during his employment.
(f) The Employee acknowledges and agrees that during the
course and solely as a result of the Employee's employment with the Employer,
the Employee has and will become aware of some, most or all of the employees of
the Employer, and has and will acquire knowledge of their qualifications,
skills, abilities, salaries, commissions, benefits and other matters with
respect to such employees not generally known to the public. The Employee
further acknowledges and agrees that any solicitation, luring away or hiring of
such employees of the Employer will cause serious loss of business and will be
detrimental to the Employer's goodwill and will cause great and irreparable
harm. During the Term of this Agreement and for a period of two (2) years after
termination of employment (for any reason whatsoever), the Employee will not
directly or indirectly either for himself or for any other person or commercial
enterprise (1) solicit or induce any employee to terminate his or her employment
relationship with the Employer, and/or (2) recruit, attempt to recruit, hire, or
attempt to hire any employee of the Employer other than on behalf of the
Employer.
(g) The Employee hereby acknowledges and agrees that the
type and periods of restrictions imposed in Sections 10(a) through 10(f) of this
Agreement are fair and reasonable and are reasonably required for the protection
of the Employer's Confidential Information and the goodwill associated with the
business of the Employer. Further, the Employee acknowledges and agrees that the
restrictions imposed in Sections 10(a) through 10(f) will not prevent him from
obtaining suitable employment after his employment with the Employer ceases or
from earning a livelihood. The Employee hereby acknowledges, agrees and
understands that he would not be entitled to the Severance Payments (as
described in Section 9(a)(ii)) or the Change in Control payment (as described in
Section 12(a)), except for his agreement to fulfill his obligations under
Sections 10(a) through 10(f) and Section 11 of this Agreement.
11. Assignment of Inventions. The Employee expressly understands and agrees
that any and all right or interest he may obtain in any designs, trade secrets,
technical specifications and technical data, know-how and show-how, customer and
vendor lists, marketing plans, pricing policies,
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inventions, concepts, ideas, works of authorship, documentation, formulae, data,
designs, techniques, discoveries, improvements or intellectual property rights
of any kind or any interest therein (whether or not patentable or registrable
under copyright, trademark or similar statutes (including, but not limited to,
the Semiconductor Chip Protection Act) or subject to analogous protection) that
he, whether alone or jointly with others, authors, conceives, devises, develops,
reduces to practice, or otherwise obtains during the Employee's employment with
the Employer, and that (i) relate to or arise out of his employment with the
Employer; (ii) relate to the Employer's present or planned business or any of
the products or services being designed, conceived, developed, marketed,
manufactured or distributed by the Employer or that may be used in relation
therewith; (iii) result from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for or by the Employer; (iv)
result from activities engaged in during the Employer's time; and/or (v) result
from use of Confidential Information of the Employer whether such use occurred
prior to or during the Employee's employment with the Employer (the
"INVENTIONS"), are and shall immediately become the sole and absolute property
of the Employer and its assigns, as works made for hire or otherwise.
The Employee hereby assigns to the Employer the sole and
exclusive right to such Inventions. The Employee agrees that he will promptly
disclose to the Employer any and all such Inventions, and that, upon request of
the Employer, the Employee will execute and deliver any and all documents or
instruments and take any other action which the Employer shall deem necessary to
assign to and vest completely in the Employer, to perfect trademark, copyright
and patent protection with respect to, or to otherwise protect the Employer's
trade secrets and proprietary interest in such Inventions. The Employer agrees
to pay any and all copyright, trademark and patent fees and expenses or other
costs incurred by the Employee for any assistance rendered to the Employer
pursuant to this Section.
In the event the Employer is unable, after reasonable effort,
to secure the Employee's signature on any letters, patent, copyright or other
analogous protection relating to an Invention, the Employee hereby irrevocably
designates and appoints the Employer and any of its officers as his agent and
attorney-in-fact, to act for and on his behalf and stead to execute and file any
such application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by the Employee. The obligations in this Section shall continue beyond the
termination of the Employee's employment.
12. Change in Control.
(a)(i) If during the Term of this Agreement there is a Change in
Control of the Employer, and the Employee's employment with the Employer is
terminated involuntarily (other than for Cause), or voluntarily for Good Reason
(as defined below), in connection with or within one and one-half (1-1/2) years
after such Change in Control, then the Employee shall be entitled to receive a
lump sum cash payment as provided in Section 12(a)(ii) below. The Employer shall
have no obligation to make the payment set forth in this Section unless the
Employee fully complies with his obligations under this Agreement, including,
but not limited to, his obligations under Sections 10 and 11 of this Agreement.
The Employer shall have no obligation to make the payment set forth in this
Section in the event of the Employee's death or upon Employee becoming "Totally
Disabled" (as described in Section 9(a)(c)) on the date of a Change in Control
or within one and one-half (1-1/2) years after such Change in Control. In such
event, the payments and benefits, if any, to which the Employee may be entitled
shall be determined in accordance with Section 9(c) of this Agreement.
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(ii) Subject to Section 12(c) hereof, the lump sum cash payment (the "Payment")
shall be in an amount equal to three (3) times the Employee's average annual
base salary paid to the Employee by the Employer over the five (5) most recent
years ending prior to such Change in Control of the Employer (or such portion of
such period during which the Employee was a full-time employee of the Employer),
less one dollar. In addition, in the event of a Change in Control, all existing
options that have been granted to the Employee shall be subject to immediate
vesting.
(iii) As used herein, the term "Good Reason" means, unless
previously consented to in writing by the Employee, the occurrence of any one of
the following:
(A) the assignment to the Employee of duties and
responsibilities that are not at least substantially equivalent to the
Employee's duties and responsibilities with the Employer immediately prior to
such Change in Control;
(B) the failure to continue the Employee in a position
and title that is at least substantially equivalent to the position held by the
Employee with the Employer immediately prior to such Change in Control, except
in connection with the termination of the Employee's employment for Cause or as
a result of death or permanent disability;
(C) a reduction in or failure to pay currently total
annual cash compensation in an amount equal to or greater than the sum of (i)
the Employee's salary at the highest annual rate in effect during the 12-month
period immediately prior to such Change in Control, and (ii) the bonus paid to
similarly situated employees pursuant to the acquiring Employer's executive
bonus plan for the fiscal year ending immediately prior to such Change in
Control;
(D) the Employee's benefits under any employee benefit or
welfare plan of the acquiring Employer are less, or are reduced to less (subject
to Employer's right to provide equivalent benefits in cash or otherwise in
kind), other than reductions mandated by a change in law, than the benefits of
similarly situated employees under any employee benefit or welfare plan of the
acquiring Employer in effect immediately prior to such Change in Control;
(E) the Employee is reassigned to a place of business
which is more than thirty-five (35) miles from a major city in the United States
as defined by the twenty-six (26) Standard Metropolitan Statistical Areas; or
(F) any material breach by the Employer of this
Agreement.
(iv) Payment under this Section 12(a) shall be in lieu of any
amount owed to the Employee as severance payments for termination without Cause
under Section 9(a) hereof. However, payment under this Section 12(a) shall not
be reduced by any compensation which the Employee may receive from other
employment with another employer after termination of his employment with the
Employer. The Employer shall have no obligation to make any contributions to any
retirement plan that may be applicable to the Employee after a Change in Control
of the Employer. The Employee shall be entitled to contributions made by the
Employer to any retirement plan that may be applicable to the Employee on the
Employee's behalf prior to a Change in Control of the Employer, which have
vested and for which the Employee is otherwise eligible in accordance with the
written terms of the official plan documents governing any applicable retirement
plan.
(b) A "Change in Control of the Employer," for purposes of this
Agreement, shall be deemed to have taken place if as the result of, or in
connection with, any cash tender or exchange
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offer, merger, or other business combination, sale of assets or contested
election, or any combination of the foregoing transactions, the persons who were
directors of the Employer before such transaction shall cease to constitute a
majority of the Board of Directors of the Employer or any successor institution.
(c) Notwithstanding any other provisions of this Agreement or of
any other agreement, contract, or understanding heretofore or hereafter entered
into by the Employee with the Employer, except an agreement, contract, or
understanding hereafter entered into that expressly modifies or excludes
application of this Section 12(c) ("Other Agreements"), and notwithstanding any
formal or informal plan or other arrangement heretofore or hereafter adopted by
the Employer for the direct or indirect provision of compensation to the
Employee (including groups or classes of participants or beneficiaries of which
the Employee is a member), whether or not such compensation is deferred, is in
cash, or is in the form of a benefit to or for the Employee (a "Benefit Plan"),
the Employee shall not have any right to receive any payment or other benefit
under this Agreement, any Other Agreement, or any Benefit Plan if such payment
or benefit, taking into account all other payments or benefits to or for the
Employee under this Agreement, all Other Agreements, and all Benefit Plans,
would cause any payment to the Employee under this Agreement to be considered a
"parachute payment" within the meaning of Section 280G(b)(2) of the Internal
Revenue Code as then in effect (a "Parachute Payment"), as determined by a
nationally recognized accounting firm selected by the Board. In the event that
the receipt of any such payment or benefit under this Agreement, any Other
Agreement, or any Benefit Plan would cause the Employee to be considered to have
received a Parachute Payment under this Agreement, then the Employee shall have
the right, in the Employee's sole discretion, to designate those payments or
benefits under this Agreement, any Other Agreements, and/or any Benefit Plans,
which should be reduced or eliminated so as to avoid having the payment to the
Employee under this Agreement be deemed to be a Parachute Payment.
(d) The Employer shall have no obligation to make the payments set
forth herein if the Employee is in material breach of the Employee's obligations
under this Agreement. The Employee shall be obligated to execute a general
release of claims in favor of the Employer, its current and former parents,
subsidiaries, subdivisions, divisions, shareholders, Board of Directors, or
affiliated entities or persons, and the current and former directors, officers,
employees and agents of the Employer, in a form acceptable to the Employer (the
"Release"), as a condition to receiving the payments set forth in this Section.
13. Remedies. The Employee acknowledges and agrees that compliance with the
covenants set forth in this Agreement is necessary to protect the business and
goodwill of the Employer and that any breach of Sections 10 through 11 of this
Agreement will result in irreparable and continuing harm to the Employer, for
which money damages may not provide adequate relief. Accordingly, in the event
of any breach or anticipatory breach of Sections 10 and 11 by the Employee, the
Employer and the Employee agree that the Employer shall be entitled to the
following particular forms of relief as a result of such breach, in addition to
any remedies otherwise available to it at law or equity: (a) injunctions,
whether temporary, preliminary or permanent, enjoining or restraining such
breach or anticipatory breach, and the Employee hereby consents to the issuance
thereof forthwith and without bond by any court of competent jurisdiction; and
(b) recovery of all reasonable sums and costs, including attorneys' fees,
incurred by the Employer to enforce the provisions of Sections 10 and 11.
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14. Expenses; Automobile Allowance.
(a) The Employee is authorized to incur, during the Term of this
Agreement, reasonable expenses for promoting the business of the Employer,
including without limitation expenses for entertainment, travel and similar
items. The Employer will promptly reimburse the Employee for all such expenses,
upon the presentation by the Employee, from time to time, of an itemized account
of such expenses.
(b) During the Term of this Agreement, the Employer shall buy or
lease a full size luxury vehicle of the Employer's choosing for the Employee's
exclusive use and/or, at the Employee's option, provide the Employee with a
monthly automobile allowance in an amount sufficient to pay the Employee's costs
for the purchase or lease of such a vehicle, and the Employer shall reimburse
the Employee (upon submission by him of reasonably itemized accounts thereof)
for all maintenance, repairs, insurance, gasoline, tolls, parking and other
reasonable upkeep and related expenses on such vehicle.
15. Legal Expenses. The Employer shall indemnify and hold harmless the
Employee from and against any and all reasonable costs and liabilities,
including without limitation reasonable attorneys' fees, arising out of or in
connection with becoming, being or having been an officer or director of the
Employer, except in relation to matters as to which the Employee shall be
finally adjudged not to have acted in good faith in the reasonable belief that
his action or failure to act was in the best interest of the Employer.
16. Successors and Assigns; Assumption by Successors. All rights hereunder
shall inure to the benefit of the parties hereto, their personal or legal
representatives, heirs, successors or assigns. This Agreement may not be
assigned or pledged by the Employee. The Employer will require any successor
(whether direct or indirect, by purchase, assignment, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Employer in any consensual transaction expressly to assume this Agreement and to
agree to perform hereunder in the same manner and to the same extent that the
Employer would be required to perform if no such succession had taken place.
References herein to the Employer will be understood to refer to the successor
or successors of the Employer, respectively.
17. Other Contracts. The Employee shall not, during the Term of this
Agreement, have any other paid employment (other than with a subsidiary or
affiliate of the Employer), except with the prior approval of the Board of
Directors of the Employer.
18. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter contained herein, and
supersedes all prior employment agreements and understandings, whether written
or oral, except for the Employer's Code of Business Conduct and Ethics,
Corporate Communications Disclosure Procedures and Xxxxxxx Xxxxxxx Policy
Statement which are incorporated herein by reference.
19. Amendments or Additions. There are currently no oral representations,
agreements or understandings which affect the enforceability of this Agreement,
and no alteration or variation of the terms of this Agreement can be valid
unless made in writing and signed by both parties, wherein specific reference is
made to this Agreement.
20. Section Headings. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
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21. Severability. Each promise and provision contained in this Agreement
shall be enforceable independently of every other promise and provision in this
Agreement. If any provision contained in this Agreement is determined to be
partially or totally invalid or unenforceable in any respect, such determination
shall not affect any other provision of this Agreement, but this Agreement shall
be considered divisible as to such provision which shall become null and void,
leaving the remainder of this Agreement in full force and effect.
22. Governing Law. This Agreement shall be governed by the laws of the
United States where applicable and otherwise by the laws of the State of New
Hampshire, without giving effect to the conflicts of laws principles thereof.
23. Arbitration of Disputes and Jury Waivers.
(a) The parties hereto agree to arbitrate any dispute,
claim, or controversy ("claim") against each other arising out of the cessation
of the Employee's employment, any claim of unlawful discrimination or harassment
that might or did arise during or as a result of the Employee's employment which
could have been brought before an appropriate government administrative agency
or in an appropriate court, including but not limited to claims of age
discrimination under the Age Discrimination in Employment Act of 1967, as
amended, as well as any claim or controversy arising under this Agreement. The
Arbitration shall be arbitrated by one arbitrator in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association. The decision or award of the arbitration shall be final
and binding upon the parties. Any arbitral award may be entered as a judgment or
order in any court of competent jurisdiction. Any claims under Sections 10 and
11 of this Agreement shall not be subject to arbitration, but shall be subject
to the remedies set forth in Section 13 hereof.
(b) If for any reason this arbitration provision is
declared unenforceable, the Employee agrees to waive any right he may have to a
jury trial with respect to any dispute or claim against the Employer relating to
this Agreement, his employment, termination or any terms and conditions of
employment, including, but not limited to claims of age discrimination under the
Age Discrimination in Employment Act of 1967, as amended.
(c) The Employee has been advised of his right to consult
with counsel regarding this Agreement. The Employee's acceptance of this
Agreement can be revoked any time within seven (7) days of signing this
Agreement, but such revocation must be signed and in writing. The Employee has
been afforded at least twenty-one (21) days to consider this Agreement.
IN WITNESS WHEREOF, the parties have knowingly and voluntarily
executed this Agreement this 19th day of November 2003.
PRESSTEK, INC. (the "Employer")
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
XXXXXXX X. XXXXXXXX
Chairman of the Board of Directors
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
XXXXXX X. XXXXXX
(the "Employee")
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