CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT entered into
this 15th day of February, 1996 (this "Agreement"), by and among Presstek, Inc.,
a Delaware corporation (the "Buyer"), Xxxx X. Xxxxxxxx ("Xxxxxxxx") and Xxxxxxxx
Coatings, Inc., an Arizona corporation ("Catalina").
W I T N E S S E T H :
WHEREAS, the Buyer, Xxxxx X. Xxxx, Xxxxxxxx, Xxxx X. Xxxxxxx
and Xxxxx X. Xxxx and Xxxx X. Xxxx, as Trustees of the Xxxxx and Xxxx Xxxx
Charitable Remainder Unitrust, dated February 12, 1996, and Catalina have
entered into a Stock Purchase Agreement of even date herewith (the "Stock
Purchase Agreement"), pursuant to which Messrs. Xxxx, Xxxxxxxx and Xxxxxxx are
required to enter into covenants of confidentiality and non-competition with
Catalina and the Buyer; and
WHEREAS, Catalina has entered into separate employment
agreements (separately, the "Employment Agreement") with each of Messrs.
Xxxxxxxx and Xxxx pursuant to which they are required to enter covenants of
confidentially and non-competition with Catalina; and
WHEREAS, the covenants of Xxxxxxxx set forth in this Agreement
are intended to be the covenants so required under the Stock Purchase Agreement
and the Employment Agreement; and
WHEREAS, unless otherwise indicated, capitalized terms herein
shall have the same meaning as used in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. As used in this Agreement, the term "Confidential
Information" shall mean any and all information (oral and written) relating to
Catalina or to the Buyer or to their respective properties, assets, operations
or business, other than such information which can be shown by Xxxxxxxx to be in
the public domain (such information not being deemed to be in the public domain
merely because it is embraced by more general information which is in the public
domain) other than as the result of a breach of the provisions of Section 2
below, including, but not limited to, information relating to: their prospective
products, processes, strategic plans and proposals, know how, prospects,
financial condition and condition of the operations or marketing plans of
Catalina and/or the Buyer.
2. In consideration of $100,000.00, receipt of which is hereby
acknowledged, Xxxxxxxx hereby agrees to not, at any time, directly or
indirectly, use, communicate, disclose or disseminate any Confidential
Information in any manner whatsoever.
3. In consideration of $100,000.00, receipt of which is hereby
acknowledged, Xxxxxxxx hereby agrees to not, during the term of his employment
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pursuant to the Employment Agreement and for a period of two years thereafter
(but in no event for less than a four-year period commencing the date hereof),
directly or indirectly (A) engage or become interested in any business (whether
as owner, manager, operator, licensor, licensee, lender, partner, stockholder,
joint venturer, director, officer, employee, consultant, partner, agent,
independent contractor, or otherwise) that is competitive with the business of
Catalina as of the date hereof at any time during his employment, or (B) take
any other action that constitutes an interference with or a disruption of the
Buyer's operation of the business of Catalina or the Buyer or the Buyer's use,
ownership and enjoyment of the assets and properties of Catalina throughout the
continental United States. Notwithstanding the foregoing, nothing shall prohibit
Xxxxxxxx from acquiring and holding up to two percent (2%) of the publicly
traded equity securities of a business that competes with Catalina or the Buyer.
4. For purposes of clarification, but not of limitation,
Xxxxxxxx hereby acknowledges and agrees that the provisions of Section 3 above
shall serve as a prohibition against him during the period described therein,
directly or indirectly, hiring, offering to hire, enticing away or in any other
manner persuading or attempting to persuade any officer, employee, agent,
consultant, lessor, lessee, licensor, licensee, customer, prospective customer
or supplier of Catalina to discontinue or alter his or its relationship with
Catalina.
5. The parties hereto hereby acknowledge and agree that (i)
the Buyer and Catalina would be irreparably injured in the event of a breach by
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Xxxxxxxx of any of his obligations under this Agreement, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Buyer and
Catalina shall be entitled to injunctive relief, in addition to any other remedy
that they may have, in the event of any such breach. If any restriction
contained in this Agreement shall be deemed to be invalid, illegal or
unenforceable by reason of the extent, duration, or geographical scope thereof,
or otherwise, then the court making such determination shall have the right to
reduce such extent, duration, geographical scope, or other provisions hereof,
and in its reduced form such restriction shall then be enforceable in the manner
contemplated hereby.
6. This Agreement may only be amended by a written instrument
executed by each of the parties hereto.
7. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
8. This Agreement shall be governed by the laws of the State
of New Hampshire applicable to contracts made and to be wholly performed
therein, without giving effect to principles of conflicts of laws.
9. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Nothing herein contained,
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express or implied, is intended to confer upon any person other than the parties
hereto and their respective heirs, legal representatives, successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
10. The failure of any of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of either of the parties
hereto to thereafter enforce each and every provision of this Agreement. No
waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no
waiver of any such breach shall be construed or deemed to be a waiver of any
other or subsequent breach.
11. If any provision of this Agreement is held or declared
invalid or unenforceable for any reason by any court of competent jurisdiction,
such provision shall be modified by such court to the extent necessary to make
the provision valid and operative, or if it cannot be so modified, then the
provision shall be severed, and the remainder of the Agreement shall continue in
full force and effect as if the Agreement has been signed with the invalid
portion so modified or eliminated but shall not affect any other provision of
this Agreement.
12. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
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made as of the date delivered if delivered personally, or received if sent by
overnight courier or if mailed by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to Xxxxxxxx: Xxxx X. Xxxxxxxx
0000 X. Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Copy to: Chandler, Tullar, Xxxxx & Redhair
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxx 00000-0000
Attn: Xxx X. Xxxxxx
If to Buyer: Presstek, Inc.
0 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Copy to: Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
or to such other address as any party shall have designated by like notice to
the other party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
PRESSTEK, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
CATALINA COATINGS, INC., an Arizona
corporation
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: President
/s/ Xxxx X. Xxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxx
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