EMPLOYMENT AGREEMENT
Exhibit
99.1
This
Employment Agreement (the “Agreement”)
is
made as of this 27th day of July, 2006 (the “Effective
Date”)
by and
between Xxxxxxx X. Xxxxxx, a person residing at 0 Xxxxxxx Xxxxxx, Xxxxxx, XX
(the “Employee”)
and
Presstek, Inc., a Delaware corporation (the “Company”).
WHEREAS,
the
Employee has certain experience and expertise that qualify him to provide the
managerial skills the Company requires, and thus the Employee and the Company
deem it in their respective best interests to enter into an agreement providing
for the Employee’s employment as a Senior Vice President of Operations, subject
to the terms and conditions hereinafter set forth;
WHEREAS,
the
Employee’s senior managerial position requires that he be trusted with extensive
Company confidential information and trade secrets and that he develop a
thorough and comprehensive knowledge of all details of the Company’s business,
including, but not limited to, information relating to research, development,
inventions, manufacturing, purchasing, accounting, engineering, marketing,
distribution and licensing of the Company’s products and services;
and
WHEREAS,
in
recognition thereof, the Employee agrees to execute the Company’s Executive
Noncompetition, Nonsolicitation, Nondisclosure and Assignment of Inventions
Agreement (the “Nondisclosure
Agreement”)
(attached hereto as Exhibit
A),
the
form of which is ancillary to and incorporated in this agreement and attached
hereto, as of the Effective Date;
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the mutual covenants and obligations
herein contained, the parties hereto agree as follows:
1. Position
and Responsibilities.
During
the term of this Agreement, the Employee agrees to serve as a Senior Vice
President of Operations or in such other positions as may be assigned. The
Employee agrees to devote all of his business time and efforts to the
performance of his duties hereunder. The Employee shall at all times report
to,
and his activities shall at all times be subject to the direction and control
of, such person appointed by the Company. The Employee shall exercise such
powers and comply with and perform, faithfully and to the best of his ability,
such directions and duties in relation to the business and affairs of the
Company as may from time to time be vested in or requested of him, and shall
not
engage in any other business activity, whether or not for profit, that may
conflict with the Employee’s duties under this Agreement and the Nondisclosure
Agreement. If Employee shall be elected to other offices of the Company or
any
of its affiliates, he shall serve in such positions without further compensation
than provided for in this Agreement. The Employee shall perform his services
under this Agreement at such locations as may be required by the
Company.
2. Compensation:
Salary, Bonuses and Other Benefits.
During
the term of this Agreement, the Company shall pay the Employee as compensation
for the Employee’s satisfactory performance of his duties and obligations
hereunder, the following:
(A) Salary.
In
consideration of the services to be rendered by the Employee to the Company,
the
Company initially will pay to the Employee an annual salary of two hundred
and
forty thousand dollars ($240,000) (the
Employee’s “Base
Salary”)
during
the term of this Agreement. Such Base Salary shall be payable in conformity
with
the Company’s customary practices for executive compensation, as such practices
shall be established or modified from time to time.
(B) Bonus.
During
the term hereof, the Employee also may be eligible to receive a bonus of up
to
forty percent (40%) of the Base Salary for each calendar year of full-time
employment. Such bonus, if any, shall be based on the Company’s and the
Employee’s achievement (as determined by the Company) of certain goals and
objectives. Such achievement is to be determined by the Company’s Board of
Directors (the “Board”)
in its
sole discretion. If the Board determines the Employee is eligible to receive
a
bonus under this Section, said bonus shall be paid no later than March 1 of
the following calendar year. No bonus under this paragraph shall be payable
to
the Employee with respect to any calendar year during which his employment
is
terminated, regardless of the manner of such termination.
(C) Other
Benefits.
During
the term hereof and subject to any contribution therefor generally required
of
executives of the Company, the Employee shall be eligible to participate in
such
employee benefits plans, including certain Company insurance plans, from time
to
time adopted by the Company and in effect for employees of the Company in
similar positions. Such participation shall be subject to (i) the terms of
the applicable plan documents, (ii) generally applicable Company policies,
and (iii) the discretion of the Company and/or the Board or any
administrative or other committee provided for in or contemplated by such plan.
The Company’s current plans and policies shall govern all other benefits. The
Company may alter, modify, add to, or delete its employee benefits plans at
any
time as the Company and/or the Board, in their sole judgment, determines to
be
appropriate.
(D) Expenses
and Automobile.
(i) The
Company shall pay or reimburse the Employee for all reasonable business expenses
incurred or paid by the Employee in the performance of his responsibilities
hereunder in accordance with the Company’s prevailing policy and practice
relating to reimbursements as established, modified or amended from time to
time. The Employee must provide substantiation and documentation of these
expenses to the Company in order to receive reimbursement.
(ii) During
the Term of this Agreement, the Employer shall buy or lease a full size luxury
vehicle of the Employer’s choosing for the Employee’s exclusive use and/or, at
the Employee’s option, provide the Employee with a monthly automobile allowance
in an amount sufficient to pay the 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 gasoline, tolls, parking
and other reasonable related expenses on such vehicle.
(E) Tax
Withholding.
The
Company shall have the right to deduct and withhold from any amounts payable
hereunder or pursuant to any other agreements or arrangements between the
Company (and any of its affiliates) and the Employee, any federal, state, local,
foreign or other taxes (“Taxes”) that the Company determines should be withheld
with respect to such payments. In the event that the Company does not withhold
the proper amount of Taxes from any such payments, the Employee will make a
prompt payment, on demand and in cash, to the Company of the amount
under-withheld.
3. Equity.
Subject
to the approval of the Board of Directors of Presstek, you will have the right
to purchase 100,000 shares of the Company's common stock. This offering will
be
staged over a two year period, 1/3rd
at the
time of hire, 1/3rd
at one
year of service and the balance at two years of service. The vesting terms
will
be three years starting on the first anniversary of the grant and the remainder
vesting on a pro rata basis over the next two years thereafter for so long
as
you are employed by the Company. The per share exercise purchase price for
your
options grant will be determined by the closing price on the date of grant.
These options are subject to the terms and conditions of the Company’s Stock
Option Plan and a Stock Option Agreement between the Company and the
Employee.
4. Voluntary
Absences; Vacation.
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 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.
5. Term.
Subject
to the earlier termination as hereafter provided in Section 6, the term of
this Agreement shall commence on the Effective Date and shall continue until
the
date three (3) years from
the
Effective Date; provided, however, that the Employee’s employment under this
Agreement shall be automatically renewed from year to year thereafter for
successive one year terms unless ninety (90) days prior to the expiration of
the
initial term or any renewal term, either party shall give written notice of
non-renewal to the other. If this notice of non-renewal is given, the Agreement
will expire and Employee’s employment will terminate. If the Employee’s
employment continues after the notice of non-renewal is given, it will be on
an
at-will basis, and, in such case, either the Employee or the Company can
terminate the Employee’s employment at any time and for any or no reason, with
or without prior notice.
6
. Termination.
The
Employee’s employment under this Agreement (and this Agreement) may be
terminated as follows:
(A) By
Expiration of the Agreement.
If this
Agreement terminates as provided herein, the Employee’s employment shall
terminate (unless as provided in Section 5) and the Employee shall be entitled
to no payments, salary continuation, severance or other benefits after the
expiration date of the Agreement, except eligibility for: (i) Base Salary to
the
extent accrued but unpaid through the date of such expiration; (ii) payment
for
accrued but unused vacation time up to the expiration date; and (iii) statutory
benefit continuation rights in accordance with COBRA (or a state law
equivalent), provided Employee makes the appropriate voluntary contribution
payments and subject to applicable law and the requirements of the Company’s
health insurance plans then in effect.
(B) At
the
Employee’s Option.
The
Employee may terminate his employment under this Agreement, with or without
cause, at any time by giving at least sixty (60) days’ advance written notice to
the Company. In the event of a termination at the Employee’s option, the Company
may accelerate Employee’s departure date and will have no obligation to pay
Employee after his actual departure date. In the event of termination at the
Employee’s option, the Employee shall be entitled to no payments, salary
continuation, severance or other benefits, except for: (i) Base Salary to the
extent accrued but unpaid through the date of Employee’s departure; (ii) payment
for accrued but unused vacation time up to the Employee’s departure date; and
(iii) statutory benefit continuation rights in accordance with COBRA (or a
state
law equivalent), provided Employee makes the appropriate voluntary contribution
payments and subject to applicable law and the requirements of the Company’s
health insurance plans then in effect.
(C) At
the
election of the Company for Cause.
The
Company may, immediately and unilaterally, terminate the Employee’s employment
under this Agreement for “Cause” at any time during the term of this Agreement
without any prior written notice to the Employee. Termination by the Company
shall constitute a termination for Cause under this Section 6(C) if such
termination is for one or more of the following causes:
(i)
the failure or refusal of the Employee to render services to the Company in
accordance with his obligations under this Agreement, a determination by the
Company that the Employee has inadequately performed the duties of his
employment, or the Employee’s refusal to follow the lawful instructions of the
Board (other than any such failure resulting from a Disability);
(ii) disloyalty,
gross negligence, dishonesty or breach of fiduciary duty;
(iii) the
commission by the Employee of an act of fraud, embezzlement, misappropriation
of
any money or other assets or property (whether tangible or intangible),
deliberate disregard of the rules or policies of the Company, or the commission
by the Employee of any other action which injures the Company;
(iv) sustained
and continuous conduct by the Employee which adversely affects the reputation
of
the Employer;
(v) the
Employee’s being charged with a felony or crime of moral turpitude;
(vi) the
commission of an act which constitutes unfair competition with the Company
or
which induces any customer of the Company to breach a contract with the Company;
or
(vii)
the
Employee’s breach of this Agreement, the Nondisclosure Agreement or any other
agreement executed by the Employee in connection with his employment and/or
the
Employee’s violation of the Company’s Ethics or Xxxxxxx Xxxxxxx
Policies.
In
the
event of a termination for Cause pursuant to the provisions of clauses (i)
through (vii) above, inclusive, the Employee shall be entitled to no payments,
salary continuation, severance or other benefits, except for: (i) Base Salary
to
the extent accrued but unpaid through the termination date; (ii) payment for
accrued but unused vacation time up to the termination date; and (iii) statutory
benefit continuation rights in accordance with COBRA (or a state law
equivalent), provided Employee makes the appropriate voluntary contribution
payments and subject to applicable law and the requirements of the Company’s
health insurance plans then in effect.
(D) At
the
Election of the Company for Reasons Other than for Cause.
The
Company may, immediately and unilaterally, terminate the Employee’s employment
under this Agreement at any time during the term of this Agreement without
Cause
by giving ten (10) days’ advance written notice to the Employee of the
Company’s election to terminate. During such ten-day period, the Employee will
be available on a full-time basis for the benefit of the Company to, among
other
things, assist the Company in making the transition to a successor. The Company,
at its option, may pay the Employee his prorated Base Salary rate for ten (10)
days in lieu of such notice. In the event the Company exercises its right to
terminate the Employee under this Section 6(D) and
the
Employee signs a comprehensive release of claims in the form, and of a scope,
acceptable to the Company, the Company agrees to pay the Employee 12
months salary
at
the Employee’s then current Base Salary rate. Such salary continuation payments
shall be payable on a bi-weekly/weekly basis, after the Effective Date of the
comprehensive release agreement and shall be subject to all applicable federal,
state and local withholding, payroll and other taxes.
Except
as
expressly set forth in this Section 6(D), Employee acknowledges that the
Company shall not have any further obligations to the Employee in the event
of
Employee’s termination under this Section 6(D), except for: (i) Base Salary
to the extent accrued but unpaid through the termination date; (ii) payment
for
accrued but unused vacation time up to the termination date; and (iii) statutory
benefit continuation rights in accordance with COBRA (or a state law
equivalent), provided Employee makes the appropriate voluntary contribution
payments and subject to applicable law and the requirements of the Company’s
health insurance plans then in effect.
(E) At
the
Employee’s Election for Good Reason.
The
Employee may terminate this Agreement and his employment for Good Reason,
provided that he give thirty (30) business days written notice of such Good
Reason to the Company. The written notice shall set forth in detail the
circumstances that the Employee believes constitute Good Reason. If the basis
for such Good Reason is not cured (as determined by the Company in good faith)
within thirty (30) business days after the Company receives written notice
specifying the basis of such Good Reason, this Agreement, and the Employee’s
employment, shall terminate. In the event of a termination by the Employee
for
Good Reason, the Employee shall be eligible for severance payments and benefits
upon satisfaction of the conditions set forth in Section 6(D). “Good
Reason”
shall
be any reason so deemed by the Board in its good faith exercise of judgment.
Subject
to the Employee’s eligibility for conditional severance described above, the
Employee’s resignation pursuant to this Section 6(E) shall be his sole
remedy.
(F) Benefits
if Agreement Terminated Due to Death or Disability.
Employee’s employment will terminate if Employee dies or suffers a Disability.
If this Agreement terminates due to the Employee’s death or Disability, Employee
shall be entitled to no payments, salary continuation, severance or other
benefits, except for: (i) Base Salary to the extent accrued but unpaid through
the date of such death or Disability; (ii) payment for accrued but unused
vacation time up to the date of such death or disability; and (iii) statutory
benefit continuation rights in accordance with COBRA, provided Employee makes
the appropriate voluntary contribution payments and subject to applicable law
and the requirements of the Company’s health insurance plans then in effect. For
the purposes of this Agreement, “Disability”
shall
mean any physical incapacity or mental incompetence (x) as a result of which
the
Employee is unable to perform substantially all his essential duties and
responsibilities hereunder for an aggregate of 120 days, whether or not
consecutive, during any twelve-month period, and (y) which cannot be
reasonably accommodated by the Company without undue hardship. Any determination
of disability shall be made by a qualified physician or physicians selected
by
the Company. The failure of the Employee to submit to a reasonable examination
by such physician or physicians shall constitute a conclusive determination
of a
permanent Disability.
(G) At
Change in Control of the Employer.
If
during the Term of this Agreement there is a Change in Control of the Employer,
and the Employee’s employment with the Employer is terminated involuntarily
(other than for Cause), or voluntarily for Good Reason (as defined in this
Agreement), in connection with or within one and one-half (1½) years after such
Change in Control, subject to Section 6(G)(iii) hereof, the Employee shall
be
entitled to receive a lump sum cash payment as provided in Section 6(G)(i)
below. The Employer shall have no obligation to make the payment set forth
in
this Section unless the Employee fully complies with his obligations under
this
Agreement, including, but not limited to, his obligations under the
Nondisclosure Agreement. The Employer shall have no obligation to make the
payment set forth in this Section in the event of the Employee’s death or upon
Employee becoming “Totally Disabled” (as described in Section 6(F)on the date of
a Change in Control or within one and one-half (1 ½) years after such Change in
Control. In such event, the payments and benefits, if any, to which the Employee
may be entitled shall be determined in accordance with Section 6(F) of this
Agreement.
(i) Subject
to Section 6(G) hereof, the lump sum cash payment (the “Payment”) shall be in an
amount equal to two (2) times the Employee’s annual base salary paid to the
Employee by the Employer prior to such Change in Control of the Employer. In
addition, in the event of a Change in Control, all existing options that have
been granted to the Employee shall be subject to immediate vesting.
(ii) A
“Change
in Control of the Employer,” for purposes of this Agreement, shall be deemed to
have taken place if 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.
(iii) 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 G (“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.
(iv) The
Employer shall have no obligation to make the payments set forth herein if
the
Employee is in material breach of the Employee’s obligations under this
Agreement. The Employee shall be obligated to execute a general release of
claims in favor of the Employer, its current and former parents, subsidiaries,
subdivisions, divisions, shareholders, Board of Directors, or affiliated
entities or persons, and the current and former directors, officers, employees
and agents of the Employer, in a form acceptable to the Employer (the
“Release”), as a condition to receiving the payments set forth in this
Section.
7. Survival
of Certain Provisions.
Provisions of this Agreement shall survive any termination of employment or
termination or expiration of this Agreement if so provided herein or if
necessary or desirable to fully accomplish the purposes of such provision.
Without limiting the foregoing, the obligations of the Employee under the
Nondisclosure Agreement of even date herewith expressly survive any termination
of employment or termination or expiration of this Agreement. The obligation
of
the Company to make payments to or on behalf of the Employee under Section
6(D)
hereof is expressly conditioned upon Employee’s continued full performance of
the obligations under the terms of the Nondisclosure Agreement executed herewith
between Employee and the Company.
8. Cessation
of Severance Payments and Benefits.
If
Employee breaches his obligations under the Nondisclosure Agreement executed
herewith the Company may immediately cease payment of all severance and/or
benefits described in this Agreement. This cessation of severance and/or
benefits shall be in addition to, and not as an alternative to, any other
remedies in law or in equity available to the Company, including the right
to
seek specific performance or an injunction.
9. Consent
and Waiver by Third Parties.
The
Employee hereby represents and warrants that he has obtained all waivers and/or
consents from third parties which are necessary to enable him to enjoy
employment with the Company on the terms and conditions set forth herein and
to
execute and perform this Agreement without being in conflict with any other
agreement, obligation or understanding with any such third party. The Employee
represents that he is not bound by any agreement or any other existing or
previous business relationship which conflicts with, or may conflict with,
the
performance of his obligations hereunder or prevent the full performance of
his
duties and obligations hereunder.
10. Governing
Law.
This
Agreement, the employment relationship contemplated herein and any claim arising
from such relationship, whether or not arising under this Agreement, shall
be
governed by and construed in accordance with the internal laws of the State
of
New Hampshire, without giving effect to the principles of choice of law or
conflicts of laws of State of New Hampshire. Any claims or legal actions by
one
party against the other arising out of the relationship between the parties
contemplated herein (whether or not arising under this Agreement) shall be
commenced or maintained in any state or federal court located in the State
of
New Hampshire, and Employee hereby submits to the jurisdiction and venue of
any
such court.
11. Severability.
In case
any one or more of the provisions contained in this Agreement or the other
agreements executed in connection with the transactions contemplated hereby
for
any reason shall be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or such other agreements, but this Agreement or
such
other agreements, as the case may be, shall be construed and reformed to the
maximum extent permitted by law.
12. Waivers
and Modifications.
This
Agreement only may be modified, and the rights, remedies and obligations
contained in any provision hereof may be waived, in accordance with this
Section 12. No waiver by the Company of any breach by the Employee or any
provision hereof shall be deemed to be a waiver of any later or other breach
thereof or as a waiver of any other provision of this Agreement. This Agreement
and its terms may not be waived, changed, discharged or terminated orally or
by
any course of dealing between the parties, but only by an instrument in writing
signed by the party against whom any waiver, change, discharge or termination
is
sought. No modification or waiver by the Company shall be effective without
the
consent of the Chief Executive Officer then in office at the time of such
modification or waiver.
13. Assignment.
The
Employee acknowledges that the services to be rendered by him hereunder are
unique and personal in nature. Accordingly, the Employee may not assign any
of
his rights or delegate any of his duties or obligations under this Agreement.
The rights and obligations of the Company under this Agreement may be assigned
by the Company and shall inure to the benefit of, and shall be binding upon,
the
successors and assigns of the Company.
14. Acknowledgments.
The
Employee hereby acknowledges and recognizes that the enforcement of any of
the
provisions in this Agreement and the Nondisclosure Agreement executed herewith
may potentially interfere with the Employee’s ability to pursue a proper
livelihood. The Employee represents that he is knowledgeable about the business
of the Company and further represents that he is capable of pursuing a career
in
other industries to earn a proper livelihood. The Employee recognizes and agrees
that the enforcement of the Nondisclosure Agreement is necessary to ensure
the
preservation, protection and continuity of the Company’s business, trade secrets
and goodwill. The Employee agrees that, due to the proprietary nature of the
Company’s business, the restrictions set forth in the Nondisclosure Agreement
are reasonable as to time and scope.
15. Adjustments
to Payment Schedules.
The
Employee and the Company agree that the payment schedule for any payments
described in this Agreement may be adjusted as necessary to avoid the
application of the provisions of Section 409A of the Internal Revenue Code
of
1986, as amended.
16. Entire
Agreement.
This
Agreement and the Nondisclosure Agreement executed herewith between the Employee
and the Company constitute the entire understanding of the parties relating
to
the subject matter hereof and supersedes and cancels all agreements relating
to
the subject matter hereof, whether written or oral, made prior to the date
hereof between the Employee and the Company or any of its
affiliates.
17. Notices.
All
notices hereunder shall be in writing and shall be delivered in person or mailed
by certified or registered mail, return receipt requested, addressed as
follows:
If
to the
Company, to:
Xxxxxx
X.
Xxxxxx, President and CEO
Presstek,
Inc.
00
Xxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
With
a
mandatory copy to:
Xxxxx
X.
Xxxxxxx, General Counsel
Presstek,
Inc.
00
Xxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
If
to the
Employee, at the Employee’s address set forth on the signature page hereto.
Notices shall be deemed to be given when delivered in person or three days
after
deposit in the mail as set forth above.
18. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument.
19. Arbitration
of Disputes and Jury Waivers.
(a) The
parties hereto agree to arbitrate any dispute, claim, or controversy ("claim")
against each other arising out of the cessation of the Employee’s employment,
any claim of unlawful discrimination or harassment that might or did arise
during or as a result of the Employee’s employment which could have been brought
before an appropriate government administrative agency or in an appropriate
court, including but not limited to claims of age discrimination under the
Age
Discrimination in Employment Act of 1967, as amended, as well as any claim
or
controversy arising under this Agreement. The Arbitration shall be arbitrated
by
one arbitrator in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association. The decision or
award of the arbitration shall be final and binding upon the parties. Any
arbitral award may be entered as a judgment or order in any court of competent
jurisdiction. Any claims under Sections 11 and 12 of this Agreement shall not
be
subject to arbitration, but shall be subject to the remedies set forth in
Section 14 hereof.
(b) If
for
any reason this arbitration provision is declared unenforceable, the Employee
agrees to waive any right he may have to a jury trial with respect to any
dispute or claim against the Employer relating to this Agreement, his
employment, termination or any terms and conditions of employment, including,
but not limited to claims of age discrimination under the Age Discrimination
in
Employment Act of 1967, as amended.
(c) The
Employee has been advised of his right to consult with counsel regarding this
Agreement. The Employee's acceptance of this Agreement can be revoked any time
within seven (7) days of signing this Agreement, but such revocation must be
signed and in writing. The Employee has been afforded at least twenty-one (21)
days to consider this Agreement.
20. Section
Headings.
The
descriptive section headings herein have been inserted for convenience only
and
shall not be deemed to define, limit, or otherwise affect the construction
of
any provision hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as
of the date first above written.
PRESSTEK,
INC.
EMPLOYEE
By:
_/s/
Xxxxxx X. Marino______ _/s/
Willliam C. Keller____
Xxxxxx
X.
Xxxxxx
Xxxxxxx
X. Xxxxxx
President
and
CEO
0
Xxxxxxx
Xxxxxx
Xxxxxx,
XX 00000
EXHIBIT
A
NONCOMPETITION,
NONSOLICITATION, NONDISCLOSURE AND ASSIGNMENT OF INVENTIONS
AGREEMENT
(For
Executives)
The
undersigned, in consideration for and as a condition of employment and/or
continued employment as an Executive 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, hereby agrees
with the Company as follows:
1. Noncompetition.
During
the period of employment as an Executive 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 a period of one (1) year after termination of such employment (for any
reason whatsoever), 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, Executive, 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 a period of one (1) year after
termination of such employment (for any reason), 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 a period of one (1) year after
termination of such employment (for any reason), 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 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 Executives 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.
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.
