Contract
Exhibit 10(y)
July 13,
2007
Re: Agreement and
Release
Dear
Moosa:
This letter Agreement contains the
terms of your separation from employment with Presstek, Inc. ("the Company") and
the mutual release between you and the Company (the "Agreement")
1. Employment Status and Final
Payments:
(a)
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Your
termination from employment with the Company will be effective as of
February 27, 2007, (the "Termination Date"). As of the Termination Date,
any entitlement you have or might have under a Company-provided benefit
plan, program, contract or practice will terminate, except as required by
federal or state law, or as otherwise described
below.
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(b)
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You
will be paid all earned time accrued but unused as of the Termination Date
on the next regularly scheduled biweekly cycle after the signing of this
Agreement.
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(c)
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The
date of the "qualifying event" under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") will be February 27, 2007, and if
enrolled, the Company's administrator, ADP Benefit Services, will present
you with information on COBRA under separate cover. The Company will make
the COBRA payments for the period of March 1, 2007 through and including
February 29, 2008. Thereafter, the payment of COBRA premiums will be
solely your responsibility.
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(d)
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You
will continue to receive all benefits under section 6 of the Employment
Agreement dated February 2, 2005, through the term of the Employment
Agreement, i.e. February 2, 2008, and any other benefits enumerated
herein. This includes, automobile allowance, dental, and stock
options.
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(e)
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The
Company agrees to pay you an additional lump sum of $ 23,500.00. This
payment will be made within 10 business days of receipt by the Company of
this Agreement signed by you.
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(f)
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All
vested options granted to you pursuant to the 2003 Plan will continue to
be exercisable for the period 10 years from the date of grant as provided
for in the Plan.
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2. Separation
Pay: In addition, the Company agrees that it will pay you a
lump sum severance payment in the amount of $275,000, less applicable taxes.
This payment will be made within 10 business days of receipt by the Company of
this Agreement signed by you.
3. Benefits: All
current medical, fringe and other benefits set forth in Paragraph 6 or elsewhere
in the Employment Agreement will be paid through February 29, 2008, subject to
the provisions of Paragraph 1(c) of this agreement. Thereafter, medical and/or
dental insurance coverage shall be continued only to the extent required by
COBRA and only to the extent you make timely premium payments. As previously
stated, you will receive COBRA information under separate cover.
4. Release: In
exchange for the amounts and undertakings described in this Agreement, which are
in addition to anything of value which you are entitled to receive, and other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, and in return for your execution of this release, the Company and
you, together with their representatives, agents, estate, heirs, successors and
assigns, absolutely and unconditionally hereby release, remise and discharge
each other, and their respective affiliates, predecessors, successors or
assigns, and their respective current and/or former partners, directors,
shareholders/stockholders, officers, employees, attorneys and/or agents, all
both individually and in their official capacities, from any and all actions or
causes of action, suits, claims, complaints, contracts, liabilities, agreements,
promises, contracts, torts, debts, damages, controversies, judgments, rights and
demands, whether existing or contingent, known or unknown, suspected or
unsuspected, which arise out of your employment with, change in employment
status with, and/or separation of employment from, the Company. This mutual
release is intended by the parties to be all encompassing and to act as a full
and total release of any claims, whether specifically enumerated herein or not,
including any claims arising from any federal, state or local law, regulation or
constitution dealing with either employment, employment benefits or employment
discrimination such as those laws or regulations concerning discrimination on
the basis of race, color, creed, religion, age, sex, sex harassment, sexual
orientation, national origin, ancestry, genetic carrier status, handicap or
disability, veteran status, any military service or application for military
service, or any other category protected under federal or state law; any
contract, whether oral or written, express or implied; any tort; any claim for
equity or other benefits; or any other statutory and/or common law
claim.
5. Period for Review and
Consideration of Agreement:
(a) You
acknowledge that you were informed and understand that you have twenty- one (21)
days to review this Agreement and consider its terms before signing
it.
(b) The
21-day review period will not be affected or extended by any revisions, whether
material or immaterial, that might be made to this Agreement.
(c)
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After
review of your legal rights with respect to the 21-day review period with
your legal counsel, you voluntarily waive the 21-day review
period.
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6. Company Files. Documents and
Other Property: You agree that within twenty days of the
execution of this Agreement you will return to the Company all Company property
and materials, other than your laptop computer, desktop computer, and domestic
cellular telephone. You may retain the Verizon wireless card through February 2,
2008, provided, however, that should you secure employment with, or be otherwise
engaged with, another company or firm before February 2, 2008, you will not use
the Verizon wireless card for any business conducted on behalf of such other
company or firm. Other items to be returned to the Company include, but are not
limited to, international cellular phones, Company credit cards and telephone
charge cards, manuals, building keys and passes, courtesy parking passes,
diskettes, intangible information stored on diskettes, software programs and
data compiled with the use of those programs, software passwords or codes,
tangible copies of trade secrets and confidential information, sales forecasts,
names and addresses of Company customers and potential customers, customer
lists, customer contacts, sales information, sales forecasts, memoranda, sales
brochures, business or marketing plans, reports, projections, and any and all
other information or property previously or currently held or used by you that
is or was related to your employment with the Company ("Company Property"). You
agree that in the event that you discover any other Company Property in your
possession after the Termination Date of this Agreement you will immediately
return such materials to the Company.
7. Litigation: In
addition, the Company will continue to represent you at no cost to you in the
Civil Action now pending in the United States District Court for the District of
New Hampshire captioned Xxxxxx v. Presstek, et al, Docket No. 1-06-cv-377.
Counsel assigned to that case will communicate with you directly. In addition,
with respect to this litigation and any other litigation in which you are
involved or which may be brought in the future, you will continue to be
indemnified and defended, including reasonable counsel fees, by the Company to
the maximum extent provided in the corporate charter and other relevant
documents.
8. Resignation from Offices and
Boards. By executing this Agreement, you resign from any and
all offices with the Company and any of its subsidiaries or related companies,
including, but not limited to, your position(s) as officer and/or director of
such subsidiary or related company. Upon the execution of this Agreement, you
shall have no legal relationship with the Company or any of its subsidiaries or
related companies. You will provide such evidence of resignation for such
subsidiaries or related companies as may be required by the
Company.
9. Representations and
Governing Law:
provision
of this Agreement shall not constitute a waiver of any other provision of this
Agreement unless expressly so indicated otherwise. The language of all parts of
this Agreement shall in all cases be construed according to its fair meaning and
not strictly for or against either of the parties.
(b) This
Agreement and any claims arising out of this Agreement (or any other claims
arising out of the relationship between the parties) shall be governed by and
construed in accordance with the laws of the State of New Hampshire and shall in
all respects be interpreted, enforced and governed under the internal and
domestic laws of the State of New Hampshire, without giving effect to the
principles of conflicts of laws of such state. Any claims or legal actions by
one party against the other shall be commenced and maintained in state or
federal court located in New Hampshire, and you hereby submit to the
jurisdiction and venue of any such court.
(c) You
may not assign any of your rights or delegate any of your duties under this
Agreement. The rights and obligations of the Company shall inure to the benefit
of, or be an obligation of, as the case may be, the Company's successors and
assigns.
Very
truly,
Presstek,
Inc.
By: /s/ Xxxxxxx
Jacobson_________
Xxxxxxx
Xxxxxxxx
Chief
Executive Officer
I
represent that I have read this Agreement, that I fully understand the
terms and conditions of such Agreement and that I am knowingly and
voluntarily executing the same. In entering into this Agreement, I do not
rely on any representation, promise or inducement made by the Company or
its representatives with the exception of the consideration described in
this Agreement.
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Accepted
and Agreed to:
/s/ Xxxxx X.
Xxxxx 7/13/07
Xxxxx X.
Xxxxx Date
/s/ 7/13/07
Witness Date
IF XX.
XXXXX DOES NOT WISH TO USE THE 21-DAY PERIOD,
PLEASE CAREFULLY REVIEW AND
SIGN THIS DOCUMENT
Waiver of Rights and Claims
Under the Age Discrimination in Employment Act of 1967:
I, Xxxxx
X. Xxxxx, acknowledge that I was informed and understand that I have 21
days
within
which to consider the attached Agreement and Release, have been advised of my
right to
consult
with an attorney regarding such Agreement and have considered carefully
every
provision
of the Agreement, and that after having engaged in those actions, I prefer to
and have
requested
that I enter into the Agreement prior to the expiration of the 21-day
period.
Since you
are 40 years of age or older, you are being informed that you have or may have
specific rights and/or claims under the Age Discrimination in Employment Act of
1967 (ADEA) and you agree that:
(a) in
consideration for the amounts described in Section 2 of this Agreement, which
you are not otherwise entitled to receive, you specifically and voluntarily
waive such rights and/or claims under the ADEA you might have against the
Company Releasees to the extent such rights and/or claims arose prior to the
date this Agreement was executed;
(b) you
understand that rights or claims under the ADEA which may arise after the date
this Agreement is executed are not waived by you;
(c) you have
been advised that you have at least 21 days within which to consider the terms
of this Agreement and you acknowledge that you have been advised of your right
to consult with your counsel of choice prior to executing this Agreement and you
have not been subject to any undue or improper influence interfering with the
exercise of your free will in deciding whether to consult with
counsel;
(d) you have
carefully read and fully understand all of the provisions of this Agreement, and
you knowingly and voluntarily agree to all of the terms set forth in this
Agreement;
(e) in
entering into this Agreement you are not relying on any representation, promise
or inducement made by the Company or its attorneys with the exception of those
promises described in this document; and
Dated:
7/13/07 Date: /s/
/s/ Xxxxx
X. Xxxxx
Xxxxx X.
Xxxxx Witness
Signature