December 7, 2007 VIA HAND DELIVERY PERSONAL AND CONFIDENTIAL Mr. Peter Bouchard
Exhibit
10(aa)
December
7, 2007
VIA
HAND DELIVERY
PERSONAL
AND CONFIDENTIAL
Xx. Xxxxx
Xxxxxxxx
Re: Termination of Employment
from
Presstek, Inc.
Dear
Xxxxx:
This
letter agreement (this “Agreement”) sets forth certain terms and conditions in
connection with your termination of employment from Presstek, Inc. (“Presstek”)
and its subsidiaries and affiliates, effective as of December 28, 2007 (the
“Effective Date”). Reference is made to the Employment Agreement,
dated as of July 1, 2005, between the Company and you (the “Employment
Agreement”). The termination of your employment arises at the
election of Presstek, in accordance with the provisions of Section 5(D) of the
Employment Agreement. In consideration of the mutual covenants set
forth below and in the Employment Agreement, and the payments and benefits
described below, the receipt and sufficiency of which Presstek (together with
its parent corporations, affiliates, past and present officers, directors,
stockholders, agents, employees, legal representatives, successors, and assigns,
hereinafter collectively referred to as, the “Company”) and you hereby
acknowledge, Presstek and you hereby agree as follows:
1. Termination of
Employment.
As of the
Effective Date, you will no longer be an employee of Presstek or any of its
subsidiaries or affiliates. You shall relinquish all titles,
positions and authorities that you held during your employment, with respect to
Presstek and each and every subsidiary or affiliate of Presstek with which you
have held positions as an officer and/or director. You agree to
provide and/or execute any and all documents necessary to effect your
resignation from all such positions.
2. Separation
Benefits.
You have
the right to receive a lump sum payment for any accrued, unused vacation time,
reduced by all applicable withholding taxes, regardless of whether you sign this
Agreement. In addition, in consideration of your agreement to the
terms of the Release (as defined in Paragraph 4), and to the other obligations
set forth in this Agreement, Presstek shall provide you with the
following:
(a) Cash
Severance Payments.
(i) You
shall receive cash payments in the aggregate amount of One Hundred Eighty-Five
Thousand Dollars ($185,000.00), representing an amount equal to your annual base
salary, in substantially equal bi-weekly installments in accordance with
Presstek’s customary payroll practices, payable over a twelve-month period,
subject to all applicable federal, state and local withholding requirements,
and
(ii) You
shall receive an amount equal to the quarterly bonus that would have otherwise
been paid to you with respect to the period October 1, 2007 through December 28,
2007, in accordance with the bonus program in which you currently participate,
as if you had been employed on the date in 2008 when such bonus payment would
otherwise have been paid to you. This payment will be made, less all
applicable withholdings, at the time that such bonus would normally be paid to
you following the conclusion of the fourth quarter. The amounts
payable under (i) and (ii) above are subject to the last sentence of this
Paragraph 2.
(b) Treatment of
Outstanding Stock Options. Any and all unvested options to
acquire common stock of Presstek that had been previously granted to you shall
terminate on the Effective Date. You may exercise any and all fully
vested stock options on or before January 28, 2008. For vested options under the
2003 plan, there is no termination provision.
(c) Health and
Dental Insurance. The Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”) requires that, in certain
cases, terminated employees be allowed to continue their medical and dental
insurance beyond their separation date at their own expense. An
explanation of your rights under COBRA will be sent to you under separate cover
at a future date. If you elect to continue your insurance coverage
under COBRA, Presstek agrees that, subject to the last sentence of this
Paragraph 2, you shall only be required to continue to pay an amount equal to a
regular employee’s contribution for family coverage for a period ending on the
earlier of the date on which you attain substantially comparable insurance
coverage through a new job position, or December 31, 2008. You agree
to notify Presstek promptly in the event that you obtain such replacement
insurance coverage.
Notwithstanding
the foregoing, payments under Paragraph 2(a) and 2(c) shall not be payable until
you execute and deliver this Agreement, containing a waiver and release of
claims in favor of the Company as set forth herein, and until this Agreement
becomes fully effective and enforceable in accordance with its terms (i.e., upon
the eighth day following the date you have signed this Agreement and so long as
you have not previously revoked the waiver and release contained
herein).
3. Return of Confidential
Information; Nondisparagement; Return of Company Property.
(a) You
agree to return to Presstek and its subsidiaries and affiliates any and all
confidential and proprietary information you have acquired regarding Presstek
and its subsidiaries and affiliates, including information about their
personnel, policies, business practices, strategic plans, advertisers,
customers, suppliers, distributors, financial forecasts, production data,
marketing techniques, promotional plans, and financial information, and to
refrain from making any statements or representations to any employee of
Presstek and its subsidiaries and affiliates or to their customers,
suppliers, competitors or the public at large which might disparage or have a
detrimental effect on Presstek’s and its subsidiaries’ and
affiliates’ business, operations, public image, reputation or their
relations with advertisers, customers, suppliers, employees, lenders,
competitors, or other business associates.
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(b) You
agree to return to Presstek all property of Presstek and its subsidiaries and
affiliates which you have in your possession including, but not limited to,
all access cards, facility keys and credit cards, computers, laptops,
Blackberrys, cell phones and any other Presstek equipment in your possession,
except as otherwise agreed to between you and Presstek.
4. Release.
(a) You
hereby agree to WAIVE any and all rights in connection with, and to fully
RELEASE and forever discharge the Company from, any and all torts, contracts,
claims, suits, actions, causes of action, demands, rights, damages, costs,
expenses, attorneys fees, and compensation in any form whatsoever, whether now
known or unknown, in law or in equity, which you have or ever had (from the
beginning of time through and including the date hereof) against the Company,
including without limitation on account of or in any way arising out of,
relating to or in connection with your employment by or separation of employment
from Presstek and its subsidiaries and affiliates (and their predecessors and
successors), and any and all claims for damages or injury to any entity, person,
property or reputation arising therefrom, claims for wages, employment benefits,
tort claims and claims under Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Civil Rights Act of 1866, the Employee Retirement
Income Security Act of 1974, the National Labor Relations Act, the Fair Labor
Standards Act, the Rehabilitation Act of 1973, the Family and Medical Leave Act
of 1993, the Americans with Disabilities Act of 1990, and any other federal,
state or local law, statute, ordinance, guideline, regulation, order or
common-law principle of any state relating to employment, employment contracts,
wrongful discharge or any other matter; provided, however, that the
foregoing waiver and release shall not apply to your rights in respect of any
benefit or claim to which you are entitled under employee pension or welfare
benefit plans and programs of Presstek and its subsidiaries and affiliates in
which you are a participant prior to the Effective Date, or to your rights to
enforce this Agreement.
(b) Release of Age
Discrimination Claims. In further consideration of the
promises made by the Presstek in this Agreement, you specifically WAIVE any and
all rights in connection with, and fully RELEASE and forever discharge the
Company from, any and all torts, contracts, claims, suits, actions, causes of
action, demands, rights, damages, costs, expenses, attorneys fees, and
compensation in any form whatsoever, whether now known or unknown, in law or in
equity, which you have or ever had (from the beginning of time through and
including the date hereof) against the Company, arising under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sec. 621, et seq. (“ADEA”). You further agree
that:
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(i)
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your
waiver of rights under this release is knowing and voluntary and in
compliance with the Older Workers Benefit Protection Act of
1990;
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(ii)
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you
understand the terms of this
release;
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(iii)
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the
consideration provided in Paragraph 2 represents consideration over and
above that to which you otherwise would be entitled had you not signed
this release, and that the consideration is in exchange for the signing of
this release;
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(iv)
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the
Company is hereby advising you in writing to consult with your attorney
prior to executing this release;
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(v)
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the
Company is giving you a period of twenty-one days within which to consider
this release;
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(vi)
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following
your execution of this release you have seven (7) days in which to revoke
this release by written notice. To be effective, the revocation must be
made in writing and delivered to and received by Xxxxx
Xxxxxxx, Vice President-Human Resources, Presstek, Inc., 00 Xxxxxxxxx
Xxxxx, Xxxxxx, XX 00000, no later than 4:00 p.m. on the seventh day
after you execute this release. An attempted revocation not actually
received by Xx. Xxxxxxx before the revocation deadline will not be
effective; and
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(vii)
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this
entire Agreement shall be void and of no force and effect if you choose to
so revoke, and if you choose not to so revoke this Agreement shall then
become fully effective and
enforceable.
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This
Paragraph 4(b) does not waive rights or claims that may arise under the ADEA
after the date you sign this Agreement. In addition, nothing in this Agreement
shall in any way affect your right to the indemnification and expense
advancement to the extent provided by the Presstek's bylaws and Certificate of
Incorporation; provided, however, that the Presstek shall not be liable, and
shall not provide a defense and indemnification for any claim wherein you have
not satisfied the applicable standard of conduct set forth in such by-laws and
Certificate of Incorporation, or wherein you have committed any acts of fraud,
embezzlement or gross misconduct.
5. Proceedings; No
Admissions.
(a) You
hereby represent and warrant that: (i) you have no pending claims against the
Company with any municipal, state, federal or other governmental or
nongovernmental entity; and (ii) you will not file any claims with respect
to any events occurring on or before the date hereof. You also acknowledge and
agree that by entering into this Agreement you can never make claim or demand
upon or sue the Company for any reason whatsoever relating to anything that has
happened through the date hereof. Notwithstanding the foregoing, this
Agreement shall not prevent you from (A) initiating or causing to be initiated
on your behalf any complaint, charge, claim or proceeding against Presstek or
its subsidiaries and affiliates before any local, state or federal agency, court
or other body challenging the validity of the waiver of your claims under the
ADEA contained in this Agreement (but no other portions of the Release); or (B)
initiating or participating in an investigation or proceeding conducted by the
Equal Employment Opportunity Commission with respect to the ADEA.
(b) Both
parties acknowledge and agree that this Agreement does not constitute, is not
intended to be, and shall not be construed, interpreted or treated in any
respect as, and shall not be admissible in any proceeding as, an admission of
liability, error, violation, omission or wrongdoing by either party for any
purpose whatsoever. Further, both parties acknowledge and agree that
there has been no determination that either party has violated any federal,
state or local law, statute, ordinance, guideline, regulation, order or
common-law principle. You further acknowledge that no precedent,
practice, policy or usage shall be established by this Agreement or the offer to
you of compensation and benefits herein.
6. Continuing Obligations;
Remedies.
(a) You
understand that this Agreement is intended to address matters relating to the
termination of your employment with Presstek, as described in Section 5(D) of
the Employment Agreement. You also understand and agree that certain
provisions of the Employment Agreement, including Sections 6, 7, 8, 9, 10, 11,
12, 13, 18 and 19, as well as your obligations under the Noncompetition,
Nonsolicitation, Nondisclosure and Assignment of Invention Agreement between you
and Presstek, remain in full force and effect.
(b) You
also understand and agree that in the event you, your heirs, spouse, family
members, executors, or administrators attempt to institute or do institute any
charge, claim, suit or action against the Company in violation of this
Agreement, you shall be obligated, as an express condition of bringing such
action, to tender back to Presstek the full amount of separation pay and other
compensation and benefits that you have received under this Agreement; and you
further agree that you will pay all of the Company's costs, expenses and fees of
defending against such action, including among other things, reasonable
attorney's fees. This paragraph does not grant you an option to
return the money and institute an action. Instead this paragraph
merely creates an additional term and condition precedent to bringing an action
regardless of the fact that such action is expressly barred by this Agreement,
and is without merit.
(c) Should
you breach any other term of this Agreement, including but not limited to filing
any claim which you have agreed to release and waive under this Agreement or
breaching any of the provisions of this Agreement, the Company will be entitled
to recover damages for such breach and also to obtain injunctive relief against
further breach by you. If Presstek or you at any time believe that
the other party has breached any term of this Agreement, the party claiming a
breach shall promptly notify the other in writing (if to you, at your address
set forth on page 1 hereof; if to Presstek, to the contact person at the address
specified in Paragraph 4(b)(vi)) of the specific basis for that belief, and the
other party will have a period of ten (10) days within which to cure any breach
(if cure is possible) or to otherwise respond to the claim of
breach.
7. Arbitration of Disputes;
Payment of Expenses.
Any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration proceedings conducted in accordance
with Section 18 of the Employment Agreement.
8. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New Hampshire, and in accordance with the provisions of
Section 9 of the Employment Agreement.
9. Acknowledgments; Revocation
of Release.
You
hereby acknowledge (a) that the Presstek has given you a period of at least
twenty one (21) days in which to review and consider this Agreement; (b) that
the Presstek has advised, and does hereby in writing advise, you to consult with
an attorney before signing this Agreement; (c) that you have read this Agreement
in its entirety; (d) that you have had at least twenty one (21) days in which to
confer with your own attorney for assistance and advice concerning this
Agreement; (e) that you understand the terms of this Agreement; (f) that you
understand that the terms of this Agreement are legally enforceable; (g) that
you have entered into this Agreement freely, voluntarily, knowingly and
willingly and were in no manner coerced into signing it; (h) that neither this
Agreement nor the discussion and negotiation leading to it are or were, in any
manner, discriminatory; (i) that you were, and hereby are, encouraged to discuss
any questions, problems, or issues concerning this Agreement with the Presstek
before signing it; (j) that you are waiving rights and claims you may have in
exchange for consideration in addition to things of value to which you are
already entitled; and (k) that after signing this Agreement you have a period of
seven (7) days in which to revoke this Agreement, however, any such revocation
must be in writing and must be addressed to Xxxxx
Xxxxxxx, Vice President-Human Resources, 00 Xxxxxxxxx Xxxxx, Xxxxxx,
XX 00000.
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10. Amendment; No Waiver;
Interpretation.
No
provisions of this Agreement may be amended, modified, waived or discharged
except by a written document signed by you and a duly authorized officer of
Presstek. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party’s rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement. No
failure or delay by either party in exercising any right or power hereunder will
operate as a waiver thereof, nor will any single or partial exercise of any such
right or power, or any abandonment of any steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. No provision of this Agreement or any related
document will be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured or drafted such
provision.
11. Severability.
If any
term or provision of this Agreement is invalid, illegal or incapable of being
enforced by any applicable law or public policy, all other conditions and
provisions of this Agreement shall nonetheless remain in full force and effect
to the fullest extent permitted by law. You agree that in the event
that any court of competent jurisdiction shall finally hold that any provision
of this Agreement (whether in whole or in part) is void or constitutes an
unreasonable restriction against you, such provision shall not be rendered void
but shall be deemed to be modified to the minimum extent necessary to make such
provision enforceable for the longest duration and the greatest scope as such
court may determine constitutes a reasonable restriction under the
circumstances.
12. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding between the parties
with respect to the termination of your employment with Presstek and supersedes
all prior agreements and understandings (whether written or oral), between you
and Presstek relating to such subject matter. None of the parties shall be
liable or bound to any other party in any manner by any representations and
warranties or covenants relating to such subject matter except as specifically
set forth herein.
13. Binding on
Successors.
This
Agreement shall be binding on, and shall inure to the benefit of, the parties to
it and their respective heirs, legal representatives, successors and permitted
assigns (including, without limitation, in the event of your death, your estate
and heirs in the case of any payments due to you hereunder).
14. No Other
Benefits.
You agree
that you are not entitled to any other compensation or benefits in connection
with your termination of employment (other than pursuant to the terms of the
employee benefit plans and programs of Presstek and its subsidiaries and
affiliates in which you participated prior to the Effective Date.
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15. Counterparts.
This
Agreement may be executed in one or more counterparts (including via facsimile
and electronic image scan (pdf)), each of which shall be deemed to be an
original, but all of which together shall constitute one and the same instrument
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
Xxxxx,
please indicate your understanding and acceptance of this Agreement by executing
both copies below, and retaining one fully executed original for your files and
returning one fully executed original to me.
Very
truly yours,
PRESSTEK,
INC.
By: /s/
Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title: Vice
President-Human Resources
I hereby
accept the terms of this Agreement and agree to abide by the provisions
hereof:
/s/ Xxxxx
Xxxxxxxx
Xxxxx
Xxxxxxxx
Date:
2/28/07
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