EXHIBIT 10.3
EMPLOYMENT AGREEMENT
AGREEMENT (the "Agreement") made by and between Presstek, Inc., a
Delaware corporation (the "Employer"), and Xxxxx X. Xxxxx (the "Employee").
WHEREAS, on March 11, 2002, the Employee commenced employment as Chief
Financial Officer and Vice President of Finance of the Employer; and
WHEREAS, the Employee and the Employer wish to enter into an agreement
setting forth the terms and conditions of Employee's employment, as described
herein that is to supercede all prior understandings and agreements concerning
Employee's employment with Employer (whether written or oral).
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, the parties hereto hereby
AGREE as follows:
1. EMPLOYMENT. Commencing as of March 11, 2002 (the "Start Date"), the
Employee shall be employed as Chief Financial Officer and Vice
President of Finance of the Employer through the Term of this
Agreement. The Employee shall render executive, financial policy 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
Chief Executive Officer and President and/or 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 a monthly base salary of $16,666.66 (an annualized
rate equal to $200,000.00 U.S. Dollars) with the salary to be reviewed
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 2.
3. DISCRETIONARY BONUSES. During the Term of this Agreement, the Employee
shall be entitled to receive an annual cash bonus of up to 40% 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. During the Term
of this Agreement, the Employee also shall be entitled to participate
in an equitable manner with all other 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 Employer for executive
employees. 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.
4. STOCK OPTION GRANT; PARTICIPATION IN STOCK OPTION, RETIREMENT AND
EMPLOYEE BENEFIT PLANS; FRINGE BENEFITS. The Employee was granted a
non-qualified stock option to purchase 90,000 shares of common stock of
the Employer on March 11, 2002 (the "March Grant"). On April 3, 2002,
the Employee was granted an additional non-qualified stock option to
purchase 25,000 shares of common stock of the Employer on (the "Xxxxx
Xxxxx"). The March Grant and the Xxxxx Xxxxx will each be governed by
the terms and conditions of the written stock option agreement that the
Employee signed for the respective Grant, as well as the Employer's
1998 Stock Incentive Plan.
In addition to the foregoing stock options, and subject to the
eligibility requirements that may be applicable, the Employee shall be
entitled to participate during the Term 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 Employee or of
executive employees generally.
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 offered by the Employer during the Term and are
commensurate with the duties and responsibilities to be performed by
the Employee under this Agreement.
5. 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 shall commence on the Start Date and
shall initially end two years thereafter, on the day preceding the
second anniversary of the Start Date, unless sooner terminated 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 second anniversary of the Start Date), be
automatically extended for an additional year unless Employer or
Employee gives written notice to the other, at least 60 days prior to
such anniversary date, that he or it does not concur in such extension.
If neither party gives notice of non-concurrence in such extension, the
Term will be automatically extended for an additional year, unless
sooner terminated in accordance with the provisions hereof.
6. 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 Chief Executive Officer and
President and/or Board of Directors of
Employer. The reasonableness of such standards shall be measured
against standards for executive performance generally prevailing in
similar high technology companies.
7. 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.
8. TERMINATION OF EMPLOYMENT.
(a) (i) The Employer may terminate the Employee's employment at any
time, but any termination by the Employer other than
termination for Cause (as defined in Section 8(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
Employee's employment, other than termination for Cause,
the Employer shall continue to be subject to any
independent obligation to Employee under any employee
benefit plan in which the Employee is then a participant to
the extent required by any such plan or by applicable law.
(ii) In the event that the Employee's employment ceases by
reason of (a) the Employer's termination of the Employee's
employment during the Term other than for Cause, or (b) the
Employer's non-concurrence in the automatic extension of
the Term, 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 8(a)(i), to make severance payments to
the Employee as liquidated damages in an aggregate amount
that is equal to the Employee's then current annual 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, plus an additional amount equal to
the Employee's then current annual salary for one (1) full
year (collectively, the "Severance Payments"). The
Severance Payments shall be paid after termination of
employment in equal installments according to the
Employer's normal payroll practices then in effect, over a
period of time post termination as is equal to the sum of:
(A) the number of months remaining in the Term when
Employee's employment ceased and (B) twelve (12) months
(such period of time over which the Severance Payments are
to be made, the "Severance Period"). Notwithstanding the
foregoing, if the Employer's termination of the Employee's
employment without Cause occurs within two (2) years after,
a "Change in Control" as defined in Section 9(b) hereof,
the amount payable to the Employee shall be determined
under Section 9(a) as limited by Section 9(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 4 hereof continue 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.
(iii) References in this Agreement to "termination for Cause"
shall mean termination on account of acts or omissions of
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 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 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 9(a) hereof) in connection with, or
within two (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
Employee is terminated for Cause, Employee shall be entitled
to no further payments pursuant to this Agreement.
9. CHANGE IN CONTROL.
(a) (i) If during the Term of this Agreement there is a Change in
Control of the Employer, and Employee's employment with the
Employer is terminated involuntarily (other than for
Cause), or voluntarily for Good Reason (as defined below),
and in each case within two (2) years after such Change in
Control, then the Employee shall be entitled as a severance
payment, for services previously rendered to the Employer,
a lump sum cash payment as provided in Section 9(a)(ii)
below.
(ii) Subject to Section 9(c) hereof, the lump sum cash payment
(the "Payment") shall be in an amount equal to two (2)
times the Employee's average annual compensation which was
payable by the Employer and was includible by the Employee
in his gross income for federal income tax purposes with
respect to the five (5) most recent taxable years of the
Employee 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.
(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, 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 50 miles from Hudson, New
Hampshire; or
(F) any breach by the Employer of this Agreement.
(iv) Payment under this Section 9(a) shall be in lieu of any
amount owed to the Employee as liquidated damages for
termination without Cause under Sections 8(a)(i) and (ii)
hereof. However, payment under this Section 9(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 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 9(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.
10. 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 Employer's choosing for
the Employer's exclusive use and/or, at the Employee's option,
provide Employee with a monthly automobile allowance in an
amount sufficient to pay 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.
11. NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND ASSIGNMENT OF
INVENTIONS AGREEMENT. As a condition of and in exchange for Employer
entering into this Agreement, the Employee will contemporaneously sign
and execute a Non-competition, Non-solicitation, Non-disclosure and
Assignment of Inventions Agreement (the "Non-competition Agreement") in
the form attached as Exhibit A hereto. The terms and conditions of the
Non-competition Agreement are hereby incorporated by reference into
this Agreement in their entirety. The Non-competition Agreement will
remain in force and effect after the termination of this Agreement and
after termination of Employee's employment for any reason.
Notwithstanding anything to the contrary in this Agreement, upon any
violation or threatened violation by the Employee of any covenants or
obligations of the Employee contained in the Non-competition Agreement,
any payments otherwise due to Employee under this Agreement shall
cease. The cessation of such payments shall be in addition to any other
remedies available to the Company, whether at law or in equity, in
connection with such violations or threatened violations.
12. 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 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.
13. 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.
14. 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.
15. ENTIRE AGREEMENT. This Agreement, the written stock option agreements
referenced herein and the Non-competition Agreement to be executed
simultaneously herewith, collectively constitute the entire agreement
between the parties with respect to the Employee's employment with the
Employer and supercedes all prior agreements and understandings,
whether written or oral.
16. AMENDMENTS OR ADDITIONS. No amendments or additions to this Agreement
shall be binding unless in writing and signed by the parties.
17. 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.
18. 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.
19. 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 28th
day of June, 2002.
PRESSTEK, INC. (the "Employer")
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name:
Title:
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX (the "Employee")
EXHIBIT A
PRESSTEK, INC.
NONCOMPETITION, NONSOLICITATION, NONDISCLOSURE AND ASSIGNMENT OF
INVENTIONS AGREEMENT
(FOR OFFICERS)
In consideration for and as a condition of employment and/or continued
employment as an officer and/or employee (the "EMPLOYEE") of PRESSTEK, INC., a
Delaware corporation, or any of its subsidiaries or affiliates (collectively,
the "COMPANY"), and/or in consideration of receiving options to purchase shares
of capital stock of the Company and/or in consideration of receiving any other
form of compensation from or in the Company and/or in consideration of being
entitled to participate in any benefit or stock purchase plan of the Company and
specifically as a condition of entering into the Employment Agreement (as
defined below), the undersigned Employee hereby agrees with the Company as
follows:
1. NONCOMPETITION. During the period of employment as an officer and/or
employee of the Company, the Employee will devote his available business time
and best efforts to promoting and advancing the business of the Company. During
the period of employment and for the Post-Employment Period after termination of
employment, the Employee agrees that he or she will not, in any jurisdiction
around the world in which the Company 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
Company at the time of termination of such employment.
2. NONSOLICITATION.
(a) During the period of employment by the Company and for the
Post-Employment Period after termination of employment, 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
Company'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 Company and/or that were made known to
the Employee by the Company during his employment with the Company; and/or (2)
solicit or attempt to solicit, with the purpose or effect of engaging in
competition with the Company, any of the Company'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 Company and/or that were made known to the Employee by the Company during
his employment with the Company.
(b) During the period of employment by the Company and for the
Post-Employment Period after termination of employment, 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 Company, and/or (2) recruit, attempt to recruit, hire, or
attempt to hire any Company employee other than on behalf of the Company.
3. NONDISCLOSURE OBLIGATION. The Employee will not at any time, whether
during or after the termination of employment, for any reason whatsoever, reveal
or disclose to any person or entity (both commercial and non-commercial) any of
the trade secrets or confidential business information of
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the Company including, but not limited to, its research and development
activities; product designs, prototypes and technical specifications; show-how
and know-how; marketing plans and strategies; pricing and costing policies;
customer and supplier lists and accounts; personnel information; or nonpublic
financial information of the Company so far as they have come or may come to the
Employee's knowledge, except as may be required in the ordinary course of
performing his duties as an employee of the Company. This restriction shall NOT
apply to: (i) information that is in the public domain through no fault of the
Employee; (ii) information received from a third party outside the Company that
was disclosed without a breach of any confidentiality obligation; (iii)
information approved for release by written authorization of the Company; or
(iv) information that may be required by law or an order of any court, agency or
proceeding to be disclosed. The Employee shall keep secret all matters of such
nature and all trade secrets or confidential business information concerning the
Company entrusted to him and shall not rely upon, use or disclose any such
information for the benefit of the Employee or any third party in any manner.
4. 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, 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 Company, and that (i) relate to or arise out of his employment with the
Company; (ii) relate to the Company's present or planned business or any of the
products or services being designed, conceived, developed, marketed,
manufactured or distributed by the Company 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 by the Company; (iv)
result from activities engaged in during Company time; and/or (v) result from
use of confidential information or trade secrets of the Company whether such use
occurred prior to or during the Employee's employment with the Company (the
"INVENTIONS"), are and shall immediately become the sole and absolute property
of the Company and its assigns, as works made for hire or otherwise.
The Employee hereby assigns to the Company the sole and exclusive right to such
Inventions. The Employee agrees that he will promptly disclose to the Company
any and all such Inventions, and that, upon request of the Company, the Employee
will execute and deliver any and all documents or instruments and take any other
action which the Company shall deem necessary to assign to and vest completely
in the Company, to perfect trademark, copyright and patent protection with
respect to, or to otherwise protect the Company's trade secrets and proprietary
interest in, such Inventions. The Company 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 Company pursuant to this Section.
In the event the Company 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 Company 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 Employee's employment.
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5. ABSENCE OF CONFLICTING AGREEMENTS. The Employee understands the
Company does not desire to acquire from him any trade secrets, know-how or
confidential business information that he may have acquired from others, and
represents and agrees that he will not use any such materials or information in
connection with his employment with the Company. The Employee represents that he
is not bound by any agreement or any other existing or previous business
relationship that conflicts with or prevents the full performance of the
Employee's duties and obligations to the Company during the course of
employment.
6. REMEDIES UPON BREACH. The Employee agrees that any breach or
threatened breach of this Agreement by the Employee will cause irreparable
damage to the Company. The Company shall have, in addition to any and all
remedies of law, the right to an injunction or other equitable relief to prevent
or cease any violation of the Employee's obligations hereunder.
7. MISCELLANEOUS. Any waiver by the Company of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof. The Employee and the Company agree that each provision
herein shall be treated as a separate and independent clause, and the
unenforceability of any one clause shall in no way impair the enforceability of
any of the other clauses of the Agreement. Moreover, if one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to scope, activity or subject matter so as to be
unenforceable at law, such provision(s) shall be construed and reformed by the
appropriate judicial body by limiting and reducing it (or them), and/or severing
it from the Agreement so as to render the Agreement enforceable to the maximum
extent compatible with the applicable law as it shall then appear. The
obligations of the Employee under this Agreement shall survive the termination
of the Employee's relationship with the Company regardless of the manner of such
termination. All covenants and agreements hereunder shall inure to the benefit
of and be enforceable by the successors of the Company. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New Hampshire. The Employee understands that this Agreement does not create an
obligation on the part of the Company to continue the Employee's employment with
the Company. Any references to gender herein shall be construed to apply equally
to either gender.
The Employee recognizes and agrees that the enforcement of this Agreement
is necessary to ensure the preservation, protection and continuity of the
confidential business information, trade secrets, workforce and goodwill of the
Company. The Employee agrees that, due to the proprietary nature of the
Company's business, the restrictions set forth in Sections 1, 2, 3 and 4 of this
Agreement are reasonable as to duration and scope.
8. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings:
"EMPLOYMENT AGREEMENT" means the Employment Agreement dated the date hereof
between the Company and the Employee.
"POST-EMPLOYMENT PERIOD" shall mean the period of time that is the greater
of: (a) the Severance Period (if Employee is entitled to Severance Payments by
reason of Section 8(a)(ii) of the Employment Agreement) and (b) one (1) year.
Capitalized terms used in this definition and not otherwise defined shall have
the meaning given to such terms in the Employment Agreement.
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IN WITNESS WHEREOF, the undersigned Employee and the Company have executed
this Agreement as of the date first written below.
PRESSTEK, INC. EMPLOYEE:
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxx
-------------------------- -----------------------------------
Name: Name: Xxxxx X. Xxxxx
Title:
Date: June 28, 2002 Date: June 28, 2002
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