EXHIBIT 10.1
SEPARATION AGREEMENT AND RELEASE
AGREEMENT made by and between PRESSTEK, INC., a Delaware corporation
("Presstek"), and XXXXXX X. XXXXXXX ("Xxxxxxx").
WHEREAS, Xxxxxxx has been employed as Chief Executive Officer of
Presstek pursuant to an employment agreement between the parties dated September
17, 1998 and amended effective as of May 25, 2000 ("Employment Agreement"); and
WHEREAS, Presstek and Xxxxxxx now wish to terminate the Employment
Agreement and memorialize the severance of their Employer/Employee relationship.
NOW, THEREFORE, intending to be legally bound, Presstek and Xxxxxxx, in
consideration of the premises and of the promises hereafter contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, AGREE as follows:
1. Effective as of April 30, 2002 (the "Separation Date"),
Xxxxxxx is hereby resigning as Chief Executive Officer and as a member of the
Board of Directors of Presstek (which resignation Xxxxxxx hereby acknowledges is
not the result of a disagreement with Presstek regarding its operations,
policies or practices), and both the Employment Agreement and Xxxxxxx'x
employment with Presstek are hereby terminated as of the Separation Date.
Effective as of the Separation Date, Xxxxxxx is also hereby resigning from any
other positions he holds as director, officer, employee or otherwise of Presstek
and any of Presstek's subsidiaries.
2. Xxxxxxx will be paid his salary earned through the Separation
Date in accordance with Presstek's regular payroll cycle and will be eligible
under Presstek's regular policies:
a. to receive his vested accounts, if any, under
Presstek's 401(k) plan;
b. to continue his health insurance coverage, in
accordance with COBRA, for a minimum of eighteen (18) months from the Separation
Date, upon payment of the full applicable premiums; and
c. to continue to have his acts covered through the
Separation Date in accordance with the terms of Presstek's Directors and
Officers Liability Insurance coverage currently in effect.
Nothing contained in this Separation Agreement and Release (the "Agreement") is
intended to impair any of the foregoing rights.
3. In consideration for the execution by Xxxxxxx of this
Agreement and compliance by him of promises made herein, Presstek will also
provide Xxxxxxx with the following
payments and benefits:
a. A separation payment equal to three times his current
annual salary, which amount, less applicable taxes and other withholdings, will
be paid to Xxxxxxx in 78 equal consecutive bi-weekly installments, commencing on
Presstek's next regularly scheduled payroll date following the Separation Date
(the period commencing upon the Separation Date and ending on the last such
consecutive monthly payment installment date is referred to herein as the
"Severance Period"); and
x. Xxxxxxx'x existing stock options set forth below will
be amended to provide, and/or the existing options will be exchanged for new
non-incentive stock options that provide (i) for immediate vesting of the
options and (ii) that the options can be exercised up until the expiration date
of the existing options (and even after the Separation Date):
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Date of Grant Expiration Date Option Plan No. of Options Exercise Price
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9/21/98 9/21/08 1994 45,000 $ 8.75
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9/21/98 9/21/08 1994 105,000 $ 8.75
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5/25/00 5/25/10 1998 100,000 $16.125
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7/11/01 7/11/11 1998 35,000 $11.15
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Xxxxxxx understands and agrees that he would not receive the monies and other
benefits specified in this Section 3, except for his execution of this Agreement
and the fulfillment by him of his promises contained in this Agreement. In
addition, the parties acknowledge and agree that the foregoing payments and
benefits shall be in lieu of any other payments, including severance, which
might otherwise be payable to Xxxxxxx, or to which Xxxxxxx might otherwise be
entitled, under the Employment Agreement or otherwise.
4. Xxxxxxx understands that Presstek makes no representation as
to the income tax treatment of any payments hereunder and that any and all
payments (and all compensation, benefits and/or other payments previously made
to Xxxxxxx by Presstek) will be subject to such tax treatment and to such
deductions, if any, as may be required under applicable tax laws.
5. Xxxxxxx agrees that at no time shall he take any action which
is intended to, or would reasonably be expected to, harm or disparage Presstek,
impair Presstek's reputation, or lead to unwanted or unfavorable publicity to
Presstek.
6. Xxxxxxx will not disclose any confidential or proprietary
information obtained by him during the course of his employment with Presstek,
including any information that was furnished to Xxxxxxx by Presstek or which he
otherwise learned or discovered about Presstek. In addition, Xxxxxxx
acknowledges and agrees that the terms of the Non-Disclosure Agreement he
entered into with Presstek, a copy of which is annexed hereto as Exhibit A,
remain in full force and effect.
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7. At no time prior to the expiration of the Severance Period and
for a period of two years thereafter shall Xxxxxxx engage in any business
activity on behalf of an entity which is a direct competitor of Presstek without
obtaining Presstek's prior written authorization.
8. At no time prior to the expiration of the Severance Period and
for a period of two years thereafter shall Xxxxxxx, directly or indirectly,
recruit or attempt to recruit, solicit or offer employment to any Presstek
employee or offer employment to any Presstek consultant without obtaining
Presstek's prior written authorization.
9. Xxxxxxx agrees to cooperate fully with Presstek, specifically
including any attorney retained by Presstek, in connection with any pending or
future litigation, business, or investigatory matter. The parties acknowledge
and agree that such cooperation may include, but shall in no way be limited to,
Xxxxxxx making himself available for interview by Presstek, or any attorney
retained by Presstek, and providing to Presstek any documents in his possession
or under his control relating to the litigation, business or investigatory
matter. Presstek agrees to provide Xxxxxxx with reasonable notice of the need
for assistance when feasible, to schedule such assistance in such a manner as
not to interfere with any alternative employment obtained by Xxxxxxx when
possible and to reimburse Xxxxxxx for the reasonable cost of his time.
10. Xxxxxxx knowingly and voluntarily releases and forever
discharges Presstek, and its current and former subsidiaries, affiliated and
related corporations, partnerships and entities, their successors and assigns,
and the current and former owners, shareholders, directors, officers and/or
employees of Presstek and/or such corporations, partnerships and entities, and
their affiliates, successors, assigns, heirs, executors and administrators
(referred to collectively throughout this Agreement as "Presstek") from and
against any and all claims, actions, demands, debts, liabilities, charges,
complaints, contracts (whether oral or written, express or implied from any
source), obligations, promises and causes of action, whatsoever, in law or
equity, known and unknown, which, against Presstek, Xxxxxxx or his heirs,
executors, administrators, successors and assigns (referred to collectively
throughout this Agreement as "Xxxxxxx") may now have or hereafter can, shall or
may have, including all unknown, undisclosed, unsuspected and unanticipated
losses, wrongs, injuries, debts, claims, or damages, for upon or by reason of
any matter, cause or thing whatsoever, from the beginning of the world to the
date hereof, including, but not limited to, any and all matters arising out of
Xxxxxxx'x employment by Presstek and the cessation of said employment
(including, but not limited to, any arising out of, or relating to, the
Employment Agreement), and any alleged violation of:
- The National Labor Relations Act, as amended;
- Title VII of the Civil Rights Act of 1964, as amended;
- Sections 1981 through 1988 of Title 42 of the United States
Code, as amended;
- The Civil Rights Act of 1991;
- The Age Discrimination in Employment Act of 1967, as amended;
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- The Employee Retirement Income Security Act of 1974, as
amended;
- The Immigration Reform Control Act, as amended;
- The Americans with Disabilities Act of 1990, as amended;
- The Fair Labor Standards Act, as amended;
- The Occupational Safety and Health Act, as amended;
- The Family and Medical Leave Act of 1993;
- any other federal, state or local civil or human rights law or
any other local, state or federal law, regulation or
ordinance;
- any public policy, contract, tort, or common law; or
- any allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters.
11. Xxxxxxx confirms and agrees that he has not and, except for
the purpose of seeking enforcement of the terms of this Agreement, will not file
or institute any claims, charges, actions, complaints or any other proceedings
against Presstek before any court, administrative agency or any other forum
based upon or arising out of any claims, actions, demands, contracts and causes
of action by or in respect of Xxxxxxx against Presstek. In the event that any
such claim, charge, action, complaint or other proceeding is filed, Xxxxxxx
shall not be entitled to recover any relief or recovery therefrom, including
costs and attorneys' fees. In addition, Xxxxxxx hereby waives the right to
voluntarily assist other individuals or entities in bringing claims against
Presstek and waives any right to become, and promises not to become a member of
any class in any case or a party or participant in any manner in any charge,
complaint or case in which a claim or claims against Presstek are made.
12. Xxxxxxx agrees not to disclose any information regarding the
existence or substance of this Agreement, except to an attorney, accountant,
spouse or financial advisor with whom he chooses to consult regarding his
consideration of this Agreement provided each such individual to whom Xxxxxxx
makes such disclosure agrees in writing not to disclose any information
regarding the existence or substance of this Agreement.
13. Xxxxxxx agrees that Presstek and only Presstek, may issue a
press release to announce Xxxxxxx'x separation from Presstek.
14. In the event that Xxxxxxx breaches this Agreement, Presstek
will be entitled to recover and/or discontinue any payment and/or other benefits
paid or payable under this Agreement and to obtain all other relief provided by
law or equity. The prevailing party in any
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litigation resulting from any such claim shall be entitled to recover reasonable
attorneys' fees and expenses of litigation from the losing party.
15. This Agreement shall be binding on the parties and their
respective heirs, successors and assigns.
16. This Agreement sets forth the entire agreement between the
patties and their affiliates with respect to the subject matter herein and
therein and fully supersedes any and all prior agreements or understandings
between them pursuant to such subject matter.
17. This Agreement may not be modified, altered or changed except
upon express written consent of both parties wherein specific reference is made
to this Agreement.
18. If any provision of this Agreement should be held invalid or
unenforceable by operation of law or by any tribunal of competent jurisdiction,
or if compliance with or enforcement of any provision is restrained by such
tribunal, the application of any and all provisions other than those which have
been held invalid or unenforceable shall not be affected.
19. This Agreement shall be governed and construed in accordance
with the laws of the State of New Hampshire (without reference to its rules as
to conflicts of laws). Any dispute arising hereunder shall be brought before a
court of competent jurisdiction in the City, County and State of New Hampshire.
22. Xxxxxxx may revoke this Agreement for a period of seven (7)
days following the date he executes this Agreement. Any revocation within this
period must be submitted, in writing, to Xx. Xxxxx X. Xxxxx, Chief Financial
Officer of Presstek, and state, "I hereby revoke my acceptance of Presstek's
Separation Agreement and Release." The revocation must be personally delivered
to Xx. Xxxxx or his designee, or mailed to Xx. Xxxxx at Presstek, Inc., 00
Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000 and postmarked within seven (7) days of
execution of this Agreement. This Agreement shall not become effective or
enforceable until the revocation period has expired. If the last day of the
revocation period is a Saturday, Sunday or legal holiday in New Hampshire, then
the revocation period shall not expire until the next following day which is not
a Saturday, Sunday or legal holiday.
XXXXXXX ACKNOWLEDGES THAT HE HAS BEEN ADVISED IN WRITING THAT HE HAS
TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT AND TO CONSULT WITH AN ATTORNEY
PRIOR TO EXECUTION OF THIS AGREEMENT. XXXXXXX AGREES THAT ANY MODIFICATIONS,
MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT DO NOT RESTART OR AFFECT IN ANY
MANNER THE ORIGINAL TWENTY-ONE (21) DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES SET
FORTH HEREIN, AND TO RECEIVE THEREBY THE SUMS AND BENEFITS SET FORTH IN SECTION
"3" ABOVE, XXXXXXX FREELY AND
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KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO
FOREVER WAIVE, SETTLE AND RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST
PRESSTEK.
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
execute this Separation Agreement and Release as of this 26th day of April 2002.
/s/ Xxxxxx X. Xxxxxxx April 23, 2002
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Xxxxxx X. Xxxxxxx
Presstek, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
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[PRESSTEK LOGO]
EMPLOYEE WORK PRODUCT AND CONFIDENTIALITY AGREEMENT
In consideration and as a condition of employment or continued employment by
Presstek, Inc. or any subsidiary, division or affiliate thereof (collectively
"Presstek"), the compensation paid therefor and the disclosure by Presstek of
confidential and proprietary information, the undersigned employee (the
"Employee") agrees as follows:
(a) Employee acknowledges that in the course of his or her employment,
Employee will (i) be exposed to valuable confidential and proprietary
information owned exclusively by Presstek or its licensors, and (ii) foreseeably
create for the sole and exclusive benefit of Presstek, additional valuable
confidential and proprietary information. Employee agrees to treat all such
information as confidential and will not during his or her employment by
Presstek or thereafter at any time disclose to others (except as his or her
duties at Presstek may require) or use for his or her own benefit any Presstek
proprietary information, including without limitation, any trade secrets, know
how or confidential information pertaining to the business, work or
investigations of Presstek.
(b) Employer agrees that all workproduct, including but not limited to
ideas, inventions, improvements, discoveries, computer code, technical or
business innovations, advertising and marketing materials, company policies and
procedures, presentations and customer and prospect lists (collectively
"Workproduct") created by Employee or under Employee's discretion or
supervision, whether or not conceived during regular work hours or otherwise,
which are along the lines of the business, work or investigations of Presstek or
which result from or are suggested by any work Employee does for Presstek,
except those workproducts acknowledged by Presstek which are listed and
described in attached Schedule A to this Agreement, shall be the sole and
exclusive property of Presstek, that any and all patents, copyrights and other
proprietary interests therein shall belong to Presstek, and that the other
provisions of this Agreement shall fully apply to all such Workproduct.
(c) Employee hereby assigns and transfers to Presstek, his or her entire
right, title and interest in and to all inventions, improvements or discoveries
(whether or not patentable) made or conceived or first reduced to practice by
him or her, whether solely or jointly with others, during the period of his or
her employment with Presstek, whether or not conceived during regular work hours
or otherwise, which are along the lines of the business, work or investigations
of Presstek or which result from or are suggested by any work Employee does for
Presstek.
(d) Employee acknowledges that all copyrightable Workproduct arising under
this Agreement, including derivative works developed therefrom, is a work made
for hire under 17 U.S.C. ss101 et seq. (the "Copyright Act"), which shall be the
sole and exclusive property of Presstek. To the extent that any copyrightable
Workproduct created by Employee may not be the sole property of Presstek and/or
may not be a work made for hire under the Copyright Act, Employee hereby
transfers, grants and assigns to Presstek, its successors and assigns, all
copyrights and all other right, title and interest in and to such Workproduct
developed under this Agreement.
(e) Employee will assist Presstek in any reasonable manner to obtain for
its own benefit patents, copyrights or other legal protection thereon in any and
all countries, and will execute when requested, patent, copyright and other
applications and assignments and any other lawful documents deemed necessary by
Presstek to carry out the purposes of this Agreement, all without further
consideration than provided for herein, but at the expense of Presstek. Employee
further agrees that the obligations stated in this paragraph shall continue
beyond the termination of his or her employment with Presstek, but if Employee
is then called upon to render such assistance, Employee shall be entitled to a
fair and reasonable per diem fee in addition to reimbursement of any expenses
incurred at the request of Presstek.
(f) Without Presstek's express prior written consent, Employee will not
during his or her employment by Presstek engage in any employment or activity
other than for Presstek in any business in which Presstek is now or may
hereafter become engaged.
(g) Employee agrees not to disclose to Presstek or use in any of his or her
work with Presstek any proprietary information of any of Employee's prior
employers or of any third party. Such information shall include, without
limitation, (i) any trade secrets or confidential information with respect to
the business, work or investigations of such prior employer or other third
party, or (ii) any ideas, inventions, improvements, innovations or discoveries
which do not constitute Workproduct as defined above. Employee further agrees
that if he or she is assigned to develop any Workproduct during the course of
his or her employment with Presstek where a question regarding the use of
proprietary information of others could be raised, then Employee shall
immediately inform his or her supervisor that continued work on such Workproduct
could raise a question as to the origin and ownership of such Workproduct and
request reassignment to another development project.
(h) This Agreement shall apply to all Presstek confidential and proprietary
information, even where such information has been disclosed to Employee prior to
the execution of this Agreement and shall continue in full force and effect
until specific items of proprietary information covered by this Agreement either
become public knowledge or independently come into the possession of Employee in
a lawful manner unrelated to Employee's continued or previous employment with
Presstek.
(i) Upon termination of Employee's employment by Presstek, all Presstek
proprietary information and related materials released to Employee and all
materials prepared or created by Employee in connection with his or her
employment with Presstek, along with all copies and notes made thereof, in any
format or media, shall be returned promptly to Presstek along with a signed
certification that Employee has done so.
(j) Employee represents that he or she has no agreements with or
obligations to others that conflict with the foregoing, or with Employee's
employment with Presstek generally.
This Agreement shall be construed in accordance with the laws of the State of
New Hampshire. This Agreement replaces any agreements previously signed by
Employee relating to Employee's employment by Presstek. This Agreement shall
inure to the benefit of the successors and assigns of Presstek, shall be binding
upon Employee's heirs, assigns and personal and legal representatives, and may
not be modified or terminated, in whole or part, except by a writing signed by
an authorized representative of Presstek. This Agreement shall not be deemed to
create an employment arrangement between Presstek and Employee.
EMPLOYEE PRESSTEK, INC.
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Xxxxxx X. Xxxxxxx Xxxxx Xxxxxxx
Date: 4/29/02 Date: 4/29/02
Schedule A
Employee Workproduct Exceptions
ITEM NAME AND DESCRIPTION PRESSTEK ACKNOWLEDGEMENT
1. ___________________________________ ___________________________________
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2. ___________________________________ ___________________________________
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3. ___________________________________ ___________________________________
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4. ___________________________________ ___________________________________
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5. ___________________________________ ___________________________________
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6. ___________________________________ ___________________________________
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