EXHIBIT 10.1
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RESIGNATION AGREEMENT AND GENERAL RELEASE
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This RESIGNATION AGREEMENT AND GENERAL RELEASE (the "Agreement") is made as
of the 14th day of November, 2001 by and between Presstek, Inc. (the "Company"),
and Xxxx X. Xxxxxx ("Xx. Xxxxxx").
WHEREAS, Xx. Xxxxxx has been employed by the Company as a senior executive;
WHEREAS, Xx. Xxxxxx desires to resign from employment with the Company and
all positions he holds at the Company or its affiliates or subsidiaries,
including his membership on the Board of Directors of the Company's subsidiary,
Lasertel, Inc. ("Lasertel");
WHEREAS, the Company and Xx. Xxxxxx desire to specify the terms and
conditions of his resignation from employment with the Company and all positions
he holds at the Company or its affiliates and subsidiaries.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows.
1. Employment/Director/Officer Status.
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(a) Resignation Date. Effective as of December 31, 2001 (the
"Resignation Date"), Xx. Xxxxxx shall resign from (a) his employment with the
Company; (b) his officer position as Vice President and Chief Financial Officer
of the Company and any other officer positions with the Company that he may
hold; (c) his position as a member of the Board of Directors of Lastertel; and
(d) all duties associated with such positions and status. Simultaneously with
execution of this Agreement, Xx. Xxxxxx will execute a letter in the form
attached hereto as Schedule A tendering his resignation from his officer
positions with the Company and his membership on the Board of Directors of
Lasertel.
(b) Termination of Benefits. As of the Resignation Date, Xx. Xxxxxx'x
salary shall cease, and any entitlement he has or might have had under any
Company-provided benefit plan, program, contract or practice shall terminate,
except as otherwise described below or as otherwise required by law.
(c) Payments of Accrued Obligations. On the Resignation Date, the
Company will provide Xx. Xxxxxx with a check for his final earned, unpaid salary
and his unused earned time off accrued through the Resignation Date. In
addition, provided that within two weeks after his Resignation Date Xx. Xxxxxx
submits to the Company an expense report and itemized documentation to the
Company's satisfaction for all final expenses incurred on behalf of the Company,
the Company will reimburse Xx. Xxxxxx for such expenses within two weeks after
he submits such documentation, all to be done in accordance with the Company's
expenses-related policies and /or practices.
(d) No Other Rights. Xx. Xxxxxx and the Company acknowledge and agree
that other than the Stock Options discussed in Section 2(c) hereof, Xx. Xxxxxx
is not entitled to any options to purchase, rights to purchase or other rights
convertible into the capital stock of the Company and/or any of its subsidiaries
or affiliates, or to any securities of, shares of capital stock of, and/or any
other form of equity in, the Company and/or any of its subsidiaries or
affiliates.
(e) Ongoing Obligations. Xx. Xxxxxx hereby affirms his ongoing
obligations pursuant to the Employee Work Product and Non-Disclosure Agreement
executed by Xx. Xxxxxx and the Company on July 16, 1998 (the "Non-Disclosure
Agreement") which shall remain in effect in accordance with its terms and
conditions. A copy of the Non-Disclosure Agreement is attached hereto as
Schedule B.
2. Consideration. In exchange for and in consideration of Xx. Xxxxxx'x
execution of this Agreement and contingent upon (i) Xx. Xxxxxx'x compliance with
all provisions of this Agreement, including but not limited to the
Non-Disclosure Agreement; and (ii) this Agreement not being revoked pursuant to
Section 9 hereof, the Company agrees to provide Xx. Xxxxxx with the following:
(a) Severance. The Company will provide Xx. Xxxxxx with a gross
severance payment of $6,923.08 per month for the twelve months following the
Resignation Date, which severance payments shall cumulatively total the gross
amount of $180,000 (the "Severance Payments").
(b) COBRA Payments. The Resignation Date shall be the date of the
"qualifying event" under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA") for purposes of medical insurance continuation. If Xx. Xxxxxx
elects to continue medical and dental insurance coverage in accordance with the
provisions of COBRA, the Company agrees to pay Xx. Xxxxxx'x COBRA premiums for
the shorter period of (i) twelve (12) months following the Resignation Date or
(ii) the period from the Resignation Date through the date on which Xx. Xxxxxx
becomes covered under another group insurance plan, all subject to the terms and
conditions set forth in COBRA. After the expiration of such time period, Xx.
Xxxxxx will be solely responsible for any and all payments for any period of
continued medical insurance coverage under COBRA. Xx. Xxxxxx will receive
additional COBRA information under separate cover.
(c) Stock Options. During Xx. Xxxxxx'x employment with the Company,
he was granted the following stock options (collectively, the "Stock Options"):
On June 22, 1998, an incentive stock option to purchase 28,000 shares of common
stock of the Company (the "6/22/1998 Incentive Stock Option"); on June 22, 1998,
a non-qualified stock option to purchase 60,000 shares of common stock of the
Company (the "6/22/1998 Non-Qualified Stock Option"); on June 14, 1999, a
non-qualified stock option to purchase 15,000 shares of common stock of the
Company (the "6/14/1999 Non-Qualified Stock Option"); and on May 25, 2000, a
non-qualified stock option to purchase 50,000 shares of common stock of the
Company (the "5/25/2000 Non-Qualified Stock Option"). The Company agrees to
accelerate the vesting of each of the four Stock Options so that as of the
Resignation Date, the Stock Options are vested to include the number of shares
that would have vested in the calendar year 2002 had Xx. Xxxxxx remained
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employed with the Company through December 31, 2002. Accordingly, as of the
Resignation Date, Xx. Xxxxxx shall be vested in each the respective Stock
Options as follows:
o 6/22/1998 Incentive Stock Option: 28,000 Vested Shares
o 6/22/1998 Non-Qualified Stock Option: 45,000 Vested Shares
o 6/14/1999 Non-Qualified Stock Option: 11,250 Vested Shares
o 5/25/2000 Non-Qualified Stock Option: 25,000 Vested Shares
The Company further agrees to extend the time period within which Xx.
Xxxxxx may exercise the Stock Options until December 31, 2002. Any Vested Shares
that are not exercised by Xx. Xxxxxx by December 31, 2002 shall be forfeited.
Moreover, as of the Resignation Date, any and all unvested shares of the Stock
Options (a total of 43,750 unvested shares) shall be unexercisable, and shall be
terminated and forfeited by Xx. Xxxxxx. Other than as set forth herein, each
Stock Option shall continue to be governed by (i) the respective written stock
option agreement pursuant to it was granted, as such agreement was executed by
Xx. Xxxxxx and the Company and as may be amended, and (ii) the applicable
Company Stock Option Plan(s), as may be amended (collectively, the "Option
Documents").
EACH OF THE OPTION AGREEMENTS IS HEREBY AMENDED BY THIS AGREEMENT, IN THE
MANNER SET FORTH ABOVE, TO ACCELERATE A PORTION OF THE STOCK OPTIONS THAT
OTHERWISE VEST DURING THE CALENDAR YEAR 2002 AND WHICH WILL BECOME EXERCISABLE
FOLLOWING THE RESIGNATION DATE UNTIL DECEMBER 31, 2002, AND THIS AGREEMENT SHALL
SERVE AS THE AMENDMENT TO EACH OF THE OPTION AGREEMENTS. XX. XXXXXX ACKNOWLEDGES
AND AGREES THAT, CONSISTENT WITH THE TERMS OF THE OPTION DOCUMENTS, UPON
EXERCISE OF ANY STOCK OPTION BY XX. XXXXXX, THE COMPANY SHALL HAVE THE RIGHT TO
DEDUCT FROM PAYMENTS OF ANY KIND OTHERWISE DUE TO XX. XXXXXX, ANY FEDERAL, STATE
OR LOCAL TAXES OF ANY KIND REQUIRED BY LAW TO BE WITHHELD WITH RESPECT TO ANY
SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF ANY STOCK OPTIONS. THE COMPANY
MAY ELECT TO SATISFY SUCH OBLIGATION, IN WHOLE OR IN PART, (I) BY CAUSING TO
WITHHOLD SHARES OF COMMON STOCK OTHERWISE ISSUABLE PURSUANT TO THE EXERCISE OF A
STOCK OPTION, OR (II) BY REQUIRING DELIVERING TO THE COMPANY SHARES OF COMMON
STOCK ALREADY OWNED BY XX. XXXXXX TO SATISFY THE OBLIGATION (AND WHICH ARE NOT
SUBJECT TO ANY REPURCHASE OR FORFEITURE REQUIREMENTS). THE SHARES SO DELIVERED
OR WITHHELD SHALL HAVE A FAIR MARKET VALUE SUFFICIENT TO SATISFY SUCH
WITHHOLDING OBLIGATION AS OF THE DATE THAT THE AMOUNT OF TAX TO BE WITHHELD IS
DETERMINED.
(d) Car Lease Payments. The Company agrees that through December 31,
2002 (i) Xx. Xxxxxx may continue to use the Company-leased car that he currently
uses (the "Car"); and (ii) the Company will continue to pay the monthly Car
lease payments on behalf of Xx. Xxxxxx; provided that through December 31, 2002,
Xx. Xxxxxx assumes responsibility for, and pays for, all costs, fees and/or
expenses associated with the Car (except for the lease and insurance payments)
including, but not limited to, those relating to maintenance, repairs, gas,
parking, inspection and/or registration. Xx. Xxxxxx and the Company agree that
any such expense, cost and/or fee not paid by Xx. Xxxxxx will be deducted from
the Severance Payments. Xx. Xxxxxx and the Company further agree that on or
before December 31, 2002, Xx. Xxxxxx shall be obligated to return the Car to the
Company in substantially the same condition as the condition of the Car on the
Resignation Date. Should Xx. Xxxxxx fail to comply with his obligations set
forth in the
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previous sentence, Xx. Xxxxxx will be obligated to immediately indemnify the
Company for any and all liabilities, costs, attorneys' fees or other expenses
incurred by the Company as a result of or in connection with Xx. Xxxxxx'x
failure to comply with such obligations.
(e) Transfer of Property. On the Resignation Date, the Company shall
transfer to Xx. Xxxxxx title to and possession of the Palm Pilot and cellular
phone that he has been using in connection with his employment with the Company.
Xx. Xxxxxx and the Company agree that Xx. Xxxxxx shall pay for any phone bills
and/or other costs or expenses associated with the cellular phone that are
incurred after the Resignation Date, and that as of the Resignation Date, the
Company shall cause Xx. Xxxxxx to be named on the agreement with the cellular
phone company as the party responsible for all payments and all other
obligations regarding the cellular phone.
(i) The parties agree that the combined value of the Palm Pilot
and cellular phone is $500.00. Xx. Xxxxxx hereby authorizes the Company to
deduct any tax withholdings applicable to the transfer of such property from any
payments to be made by the Company after the Resignation Date pursuant to this
Agreement. As of the transfer, all risk of damage or loss with respect to such
Palm Pilot and cellular phone shall rest with Xx. Xxxxxx. The Palm Pilot and
cellular phone shall be transferred to Xx. Xxxxxx "as is," with no
representations or warranties, express or implied, being made to Xx. Xxxxxx
(including warranties of merchantability or fitness for a particular purpose)
and, without limiting the generality of the foregoing in any way, in no event
shall the Company be liable for any consequential, special, punitive or other
damages in connection with this transfer of the Palm Pilot and cellular phone.
(ii) Xx. Xxxxxx represents and warrants that by the Resignation
Date, he will delete all confidential, trade secret and/or proprietary
information of the Company that may be stored on the Palm Pilot, in accordance
with Section 7 of this Agreement and Xx. Xxxxxx'x obligations contained in the
Nondisclosure Agreement.
(f) Taxes. All payments made or benefits provided pursuant to
Sections 1 and 2 of the Agreement will be subject to all applicable federal,
state, and local income, withholding, payroll and other taxes.
3. General Release.
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(a) In exchange for the payments and benefits described in Section 2
hereof, as well as the release set forth in Section 3(b) hereof, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xx. Xxxxxx hereby agrees that he, his representatives, agents,
estate, heirs, administrators, agents, attorneys, successors and assigns
(collectively and individually, the "Rossen Releasors"), absolutely and
unconditionally hereby release, remise, indemnify, hold harmless and forever
discharge the Company and its predecessors, successors, subsidiaries (including
but not limited to Lasertel), divisions, affiliates, assigns, investors, benefit
plans and insurers, as well as the current and former directors, shareholders,
stockholders, officers, employees, attorneys, representatives and/or agents of
any such entities, both individually and in their official capacities
(collectively and individually, the "Company Parties"), from any and all
"Claims" that the Rossen Releasors have, may have or have
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had against the Company Parties through the date that Xx. Xxxxxx executes this
Agreement, whether or not specifically enumerated in this Agreement.
(b) In exchange for general release by the Rossen Releasors as set
forth above in Section 3(a) hereof, the Company and its predecessors,
successors, subsidiaries (including but not limited to Lasertel), affiliates,
divisions and assigns (the "Company Releasors"), absolutely and unconditionally
hereby release, remise, indemnify, hold harmless and forever discharge the
Rossen Releasers from any and all Claims that the Company Releasors have, may
have or have had against the Rossen Releasors. Provided, however, that nothing
in this Agreement shall be construed to, and the Company Releasors shall not,
release the Rossen Releasors from any claims the Company Releasors have, may
have or have had arising out of or concerning any obligations Xx. Xxxxxx may
have, whether under statute, agreement (including without limitation the
Non-Disclosure Agreement) or common law, relating to noncompetition;
nonsolicitation of customers, employees or other third parties; and/or the
theft, misuse or misappropriation of corporate opportunities, trade secrets,
confidential information, proprietary and/or intellectual property of the
Company Releasors.
(c) For purposes of this Agreement, "Claims" shall mean any and all
actions or causes of action, suits, claims, complaints, contracts, liabilities,
obligations, agreements, promises, debts, damages, judgments, rights, demands
and remedies of any type, whether existing or contingent, known or unknown, in
law or in equity, including, but not limited to, those arising out of or in
connection with: (i) any relationship between Xx. Xxxxxx and the Company,
including, but not limited to, Xx. Xxxxxx'x status as an employee, stockholder,
officer or director of the Company, its subsidiaries, divisions and/or
affiliates, or any change in and/or cessation of any such relationship; (ii) any
federal, state or local law, constitution or regulation regarding either
employment or employment discrimination and/or retaliation including, without
limitation, those concerning discrimination on the basis of race, color, age,
handicap, physical or mental disability, creed, religion, sex, sex harassment,
sexual orientation, marital status, national origin, ancestry, veteran status,
military service and/or application for military service; (iii) any federal,
state or local law, constitution or regulation regarding stock, options or
rights to purchase stock, equity, ownership interests and/or securities; and/or
(iv) any contract, whether oral or written, express or implied, any tort, and/or
any other statute or common law of any nature whatsoever. Provided, however,
that no party shall waive any Claims that may relate to or arise under this
Agreement and its attached schedules.
4. Waiver of Rights and Claims Under the Age Discrimination in Employment
Act of 1967: Because Xx. Xxxxxx is 40 years of age or older, Xx. Xxxxxx is
hereby informed that he has or might have specific rights and/or claims under
the Age Discrimination in Employment Act of 1967 ("ADEA") and Xx. Xxxxxx agrees
that:
(a) In exchange for the consideration described in this Agreement, to
which he is not otherwise entitled, Xx. Xxxxxx specifically waives such rights
and/or claims to the extent that such rights and/or claims arose prior to or on
the date this Agreement was executed;
(b) Xx. Xxxxxx understands that he does not waive any rights or
claims under the ADEA that may arise after the date he executes this Agreement;
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(c) Xx. Xxxxxx hereby is advised of the right to consult with his
counsel of choice prior to executing this Agreement and Xx. Xxxxxx agrees and
acknowledges that he has not been subject to any undue or improper influence
interfering with the exercise of his free will in executing this Agreement; and
(d) Xx. Xxxxxx has 21 days within which to consider and execute this
Agreement, and the 21-day period will not be affected by any modifications,
whether material or immaterial, that may be made to this Agreement.
5. Settlement of Amounts Due. Xx. Xxxxxx accepts the payments and
benefits set forth in this Agreement, together with any payments and benefits
previously provided by the Company to him, as full, complete and unconditional
payment, settlement, accord and/or satisfaction of any and all obligations and
liabilities of the Company Parties to Xx. Xxxxxx, and with respect to all Claims
that could be asserted by Xx. Xxxxxx against the Company Parties arising out of
Xx. Xxxxxx'x employment and/or other relationship with the Company, its
subsidiaries and/or affiliates, or any change in and/or cessation of such
employment or relationship, including, without limitation, any and all Claims
for wages, salary, vacation pay, compensation, draws, incentive pay, bonuses,
stock, stock options, deferred compensation, commissions, severance pay,
attorney's fees, ownership or equity interests in the Company, exemplary damages
or other benefits, costs or sums.
6. Future Conduct.
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(a) Confidentiality. Xx. Xxxxxx agrees that he shall not divulge or
publish, directly or indirectly, any information regarding the substance, terms
or existence of this Agreement and/or any discussions or negotiations relating
to this Agreement to any person or entity other than his attorneys, accountants,
financial advisors or members of his immediate family. The Company agrees that
it shall not divulge or publish, directly or indirectly, any information
regarding the substance, terms or existence of this Agreement and/or any
discussions or negotiations relating to this Agreement to any person or entity
other than (i) its attorneys, accountants, financial advisors and directors;
(ii) any employee of the Company or its subsidiaries and/or affiliates who needs
to know such information in order to perform his/her job responsibilities; and
(iii) as required by federal, state or local law, regulation, guidance or
ordinance.
(b) Nondisparagement. Xx. Xxxxxx agrees that he shall not make any
disparaging, negative or otherwise detrimental statements to any person
(including any employee of the Company or its subsidiaries and/or affiliates) or
entity concerning the Company or its subsidiaries and/or affiliates and/or their
respective operations, financial condition, directors, officers, shareholders
and/or employees. The officers and directors of the Company agree that they
shall not make any disparaging, negative or otherwise detrimental statements to
anyone concerning Xx. Xxxxxx.
(c) Communications. Nothing in this Agreement shall prohibit or bar
the parties from providing truthful testimony in any legal proceeding or in
communicating with any governmental agency or representative or from making any
truthful disclosure required under law;
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provided, however, that in providing such testimony or in making such
disclosures or communications, the parties will use their best efforts to ensure
that this Section is complied with to the maximum extent possible. Moreover,
nothing in this Agreement shall prevent Xx. Xxxxxx from contacting, seeking
assistance from or participating in any proceeding before any federal or state
administrative agency to the extent permitted by applicable federal, state
and/or local law. However, notwithstanding this provision, Xx. Xxxxxx will be
prohibited to the fullest extent authorized by law from obtaining monetary
damages in any agency proceeding in which he does so participate.
7. Company Confidential Information and Property. Xx. Xxxxxx agrees that
by the Resignation Date, he will return to the Company all confidential
information, and property and materials of the Company (including its
subsidiaries and/or affiliates), including, but not limited to, company records,
documents or other information, along with all copies thereof, and all computer
storage media containing any such records, documents or other information, all
pagers, cellular telephones, personal computer equipment and software, company
credit cards, gas cards, telephone charge cards, building keys and/or passes and
any other equipment belonging to the Company (except for the cellular phone and
Palm Pilot described in Section 2(e) hereof). Xx. Xxxxxx agrees that in the
event he discovers any other Company materials in his possession after the date
he executes this Agreement, he will immediately return such materials to the
Company.
8. General.
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(a) Entire Agreement. The parties agree that no other terms,
conditions, representations, agreements, understandings, or promises have been
made that are not contained herein, and that this Agreement, including its
attached Schedules and the Option Documents, represents the full and complete
understanding between them. Moreover, this Agreement, including its attached
Schedules and the Option Documents, sets forth the complete, sole and entire
agreement between the parties, and supersedes and cancels any and all prior or
contemporaneous agreements, negotiations, discussions, offers, understandings,
proposals, or understandings by or between the parties, whether oral or written,
express or implied, including, without limitation, the May 21, 1998 offer letter
from the Company to Xx. Xxxxxx. The language of all parts of this Agreement
shall in all cases be construed as a whole in accordance with its fair meaning
and not strictly for or against either party hereto.
(b) No Modification/Waiver/Assignment. This Agreement may not be
changed, amended, modified, superseded or rescinded except upon the express
written and signed consent of the President of the Company and Xx. Xxxxxx. The
failure by a party to exercise any right hereunder shall not operate as a waiver
of such party's right to exercise such right or any other right in the future.
Xx. Xxxxxx may not assign any of his rights or delegate any of his duties under
this Agreement, but this Agreement shall be binding upon and inure to the
benefit of Xx. Xxxxxx'x successors, heirs, assigns, administrators, executors
and representatives. This Agreement may be assigned to, and shall be binding
upon and inure to the benefit of, the successors and assigns of the Company.
Each party hereto shall pay his or its own attorney's fees in connection with
the drafting and negotiation of this Agreement, including its attached
schedules.
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(c) Severability/Reformation. In the event that any provision of this
Agreement is determined by a tribunal of competent jurisdiction to be legally
invalid, void or voidable, the affected provision shall be stricken from the
Agreement, and the remaining terms of the Agreement and its enforceability shall
remain unaffected thereby; provided, however, that if such affected provision is
Section 3 and/or 4 hereof, the parties, upon returning the consideration
exchanged in the execution of this Agreement, may discontinue performance under
this Agreement. Moreover, if one or more of the provisions contained in this
Agreement shall for any reason be held by a tribunal of competent jurisdiction
to be excessively broad or otherwise unenforceable at law, such provision or
provisions shall be reformed and construed by the appropriate judicial body by
limiting or reducing it or them, so as to be enforceable to the maximum extent
compatible with the applicable law as it shall then appear.
(d) Governing Law. This Agreement shall in all respects be
interpreted, enforced and governed under and in accordance with the laws of the
State of New Hampshire, without giving effect to the principles of conflicts of
law thereof or of any other jurisdiction.
(e) Headings/Counterparts. The paragraph 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. This Agreement may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which will be deemed one and the same instrument.
9. Effective Date: After signing this Agreement, Xx. Xxxxxx may revoke it
for a period of seven (7) days following said signing. This Agreement shall not
become effective or enforceable until the revocation period has expired.
XX. XXXXXX REPRESENTS THAT HE HAS READ THE FOREGOING AGREEMENT, THAT HE FULLY
UNDERSTANDS THE TERMS AND CONDITIONS OF SUCH AGREEMENT AND THAT HE IS
VOLUNTARILY EXECUTING THE SAME. XX. XXXXXX ACKNOWLEDGES THAT IN ENTERING INTO
THIS AGREEMENT, HE IS NOT RELYING ON ANY REPRESENTATION, PROMISE OR INDUCEMENT
MADE BY THE COMPANY OR ITS ATTORNEYS, WITH THE EXCEPTION OF THE CONSIDERATION
DESCRIBED IN THIS DOCUMENT.
IN WITNESS WHEREOF, the parties hereby execute this Resignation Agreement
and General Release as of the day, month and year first written above.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
PRESSTEK, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President & Chief Executive Officer
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[PRESSTEK LOGO APPEARS HERE]
SCHEDULE A
November 14, 2001
Presstek, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Lasertel, Inc.
0000 X. Xxxx Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: Board of Directors
Gentlemen:
Effective December 31, 2001, I hereby resign from my officer positions of
Vice President and Chief Financial Officer and any other officer positions I
hold with Presstek, Inc., and from my position as a member of the Board of
Directors of Lasertel, Inc., as well as all duties associated with any such
positions.
Sincerely,
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
[PRESSTEK LOGO APPEARS HERE]
EMPLOYEE WORK PRODUCT AND NON-DISCLOSURE 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) Employee 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.ss.ss.101 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
[PRESSTEK LOGO APPEARS HERE]
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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
[PRESSTEK LOGO APPEARS HERE]
(l) 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, and Employee
acknowledges that Employee's employment by Presstek is an "at will"
relationship.
EMPLOYEE PRESSTEK, INC.
/s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
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7/16/98 7/16/98
--------------------- ---------------------
Date Date
[PRESSTEK LOGO APPEARS HERE]
Schedule A
Employee Workproduct Exceptions
Item Name and Description Presstek Acknowledgement
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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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