EXHIBIT 10ee
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EMPLOYMENT AGREEMENT
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AGREEMENT (the "Agreement") made by and between PRESSTEK, INC., a
Delaware corporation (the "Employer"), and Xxxxxxx X. Xxxxxxxx (the "Employee").
WHEREAS, the Employee has heretofore been employed as Chief Scientific
Officer of the Employer;
WHEREAS, the Employee wishes to continue in his employment with the
Employer and the Employer wishes to continue its employment of Employee; and
WHEREAS, the parties desire to amend, restate and supersede all
previous agreements between the Employer and the Employee to the extent that
they relate to the Employee's continued employment by Employer.
NOW, THEREFORE, 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, it is AGREED as follows:
1. EMPLOYMENT. The Employee is employed as Chief Scientific Officer of
the Employer from the date hereof 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.
2. COMPENSATION. The Employer agrees to pay the Employee during the
Term of this Agreement as outlined in Schedule A attached. 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.
Participation in retirement and other employee benefit plans and fringe
benefits shall not reduce the Salary payable to the Employee under this Section
2.
3. PARTICIPATION IN STOCK OPTION, RETIREMENT AND EMPLOYEE BENEFIT
PLANS; FRINGE BENEFITS. Subject to the eligibility requirements that may be
applicable, the Employee shall be entitled to participate in any plan or
arrangement of the Employer relating to stock options, 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 executive employees
generally.
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In addition, during the term hereof, the Employer will cooperate in
providing life insurance coverage on the life of the Employee through a
split-dollar life insurance policy collateral assignment agreement, the terms
and conditions of which shall be provided for in an agreement separate from this
Agreement.
The Employee shall 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 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.
4. EMPLOYMENT TERM. "Term," as used in this Agreement, shall refer to
the Term of this Agreement as defined in this paragraph. The Term of the
employment under this Agreement is for a five year period ending December 31,
2004 unless sooner terminated in accordance with the provisions hereof.
5. 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. The reasonableness of such standards shall be measured against
standards for executive performance generally prevailing in similar high
technology companies.
6. VOLUNTARY ABSENCES; VACATIONS. The Employee shall be entitled to
vacation time during the Term of this Agreement 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.
7. 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 shall
require 180 days prior written notice and shall not prejudice
the Employee's right to receive the compensation and other
benefits set forth in this Agreement. In the event of a
termination for Cause, the Employee shall have no right to
receive such compensation or other benefits, including payment
of legal fees and expenses incurred, for any period after the
termination for Cause. Regardless of the reason for the
termination of 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, and
to the compensation set forth in this Agreement.
(ii) Unless termination is for Cause, the Employer shall be
obligated concurrently with such termination, in lieu and
replacement of Employee's
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entitlement to any compensation and other benefits under this
Agreement pursuant to Section 8(a)(i), to make a lump sum cash
payment to the Employee as liquidated damages of an amount
equal to the present value of the Employee's then current
Salary under this Agreement calculated for a period based on
the remainder of the Term hereof when the Agreement is
terminated; provided, however, that if the termination of
employment occurs in connection with or within two years after
a "Change in Control" as defined in Section 8(b) hereof, the
amount payable to the Employee shall be determined under
Section 8(a) as limited by Section 8(c) hereof. Such payment
to the Employee shall be made on or before the Employee's last
day of employment with the Employer. The liquidated damages
shall not be reduced by any compensation which 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 3
hereof continue for the remainder of the Term hereof when the
Agreement is terminated, except as otherwise required by law
or provided in the related retirement or other employee
benefit plans or agreements.
(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 a two-thirds vote of the full Board of
Directors of the Employer. "Cause" shall mean any one or more,
but only one or more, 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, or
(E) Continued failure of the Employee substantially and
satisfactorily to perform his duties or obligations under
this Agreement following 30 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 approved by the
Board of Directors of the
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Employer or is for Good Reason (as described in Section 8(a)
hereof) in connection with or within two years after a Change
in Control (as defined in Section 8(b) hereof). 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,
and the Employer shall be entitled, in addition to its other
legal remedies, to request a court of competent jurisdiction
to enjoin the employment of the Employee with any significant
competitor of the Employer, within a 30 mile radius of the
Employer or any location at which the Employer operates at the
time, for a period of one year or the remaining Term of this
Agreement, whichever is less. Upon written consent, the Board
may permit the Employee to work for a significant competitor
during such period. During such period, even if the Employee
is permitted to be employed by a significant competitor, he
shall not without the approval of the Board of Directors of
the Employer induce any officer of the Employer to accept
employment from such significant competitor, nor shall he use
proprietary and confidential information of the Employer for
the benefit of such a significant competitor.
8. 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 two years after such Change in
Control, then the Employee shall be entitled to receive the
compensation and other benefits set forth as outlined in
Schedule A attached.
(ii) 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;
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(C) A reduction in or failure to pay currently total annual
cash compensation in an amount equal to or greater than
the sum of the Employee's Salary at the highest annual
rate in effect during the 12-month period 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, 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 30 miles from Hudson, New Hampshire; or
(F) Any breach by the Employer or the acquiring employer of
this Agreement.
(iii) Payment under this Section 8(a) shall be in lieu of any
amount owed to the Employee as liquidated damages for
termination without Cause under Sections 7(a)(i) and (ii)
hereof. Payment under this Section 8(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.
(b) A "change in control of the Employer," for purposes of this
Agreement, shall be deemed to have taken place if: (i) a third
person, including a "group" as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, becomes the beneficial
owner of shares of the Employer having 20 percent or more of
the total number of votes that may be cast for the election of
directors of the Employer; or (ii) as the result of, or in
connection with, any cash tender or exchange 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 the Agreement or of
any other agreement, contract, or understanding heretofore or
hereafter entered into by the Employee with the Employer,
except an
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agreement, contract, or understanding hereafter entered into
that expressly modifies or excludes application of this
Section 8(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.
9. EXPENSES. 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.
10. LEGAL EXPENSES. The Employer shall indemnify and hold harmless the
Employee from and against any and all costs and liabilities, including without
limitation reasonable attorneys' fees, arising out of or in connection with
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.
11. SUCCESSORS AND ASSIGNS; ASSUMPTION BY SUCCESSORS. All right here-
under 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
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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.
12. 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.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior employment agreements and
understandings, whether written or oral.
14. AMENDMENTS OR ADDITIONS. No amendments or additions to this
Agreement shall be binding unless in writing and signed by the parties.
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15. 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.
16. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
17. 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, except the choice of law rules thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement this
25th day of May, 2000.
PRESSTEK, INC. (the "Employer")
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
XXXXXXX X. XXXXXXXX (the "Employee")
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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SCHEDULE A
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COMPENSATION
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YEAR COMPENSATION ESTIMATED WORK DAYS
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2000 $300,000 200
2001 $250,000 125
2002 $200,000 100
2003 $150,000 75
2004 $100,000 50
If necessary, this compensation schedule continues to be payable as
outlined in the "X.X. Xxxxxxxx Trust."
STOCK COMPENSATION
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YEAR AMOUNT OF OPTION SHARES
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2000 100,000
2001+ as granted to the Board of Directors
BENEFITS
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If necessary, insurances will continue through 2004 for the Employee's
spouse.
