PRESSTEK, INC. NON PLAN, NONQUALIFIED STOCK OPTION AGREEMENT
Exhibit
10.3
PRESSTEK,
INC.
NON
PLAN, NONQUALIFIED STOCK OPTION AGREEMENT
Presstek,
Inc. (the “Company”)
hereby
grants to the Employee the following nonqualified stock option (the “Option”)
pursuant
to NASDAQ Rule 4350(i)(1)(A)(iv) (the “NASDAQ
Exception”)
as an
inducement material to the Employee’s entering into employment with the Company,
such Option having been approved by the Company’s independent compensation
committee. The
Terms
and Conditions attached hereto are also a part hereof and the undersigned
Optionee hereby acknowledges receipt of such Terms and Conditions.
|
Name
of Employee (the “Optionee”):
|
Xxxxxxx
Xxxxxxxx
|
|
Xxxxx
Date of this Option:
|
May
10, 2007
|
|
Number
of shares of the Company’s Common Stock subject to this Option
(“Option
Shares”):
|
1,000,000
|
|
Option
exercise price per share:
|
$6.14
|
|
Vesting
Start Date:
|
May
10, 2007
|
Vesting
Schedule:
|
Date:
|
Increment
of Option Vesting:
|
|
May
10, 2007
January
1, 2008
January
1, 2009
January
1, 2010
January
1, 2011
|
One-fifth
Two-fifths
Three-fifths
Four-fifths
Entire
Option Grant
|
|
Vesting
of each such increment (each one-fifth increment representing 200,000
Option Shares) is dependent on the continuation of Employee’s employment
with the Company until the referenced vesting date for such increment
as
shown above, or the occurrence of an event described in the Employment
Agreement dated May 10, 2007 between the Company and the Employee
(“the
Employment
Agreement”)
as described in the Terms and Conditions attached hereto.
|
|
|
Payment
alternatives (specify any or all of Section 6 (a)(i) through (iii)):
All
of the methods set forth in Section 6 (a)(i) - (iii).
|
|
|
Presstek,
Inc.
|
|
|
__/s/
Xxxxxxx Jacobson___________________
|
|
|
Xxxxxxx
Xxxxxxxx, Optionee
|
By:_/s/
Xxxxxxx Cook___________
|
|
____________________________________
|
Xxxxxxx
X. Xxxx
|
|
Street
Address
|
Chief
Financial Officer
|
|
____________________________________
|
|
|
City/State/Zip
Code
|
PRESSTEK,
INC.
NONQUALIFIED
STOCK OPTION AGREEMENT -- INCORPORATED TERMS AND CONDITIONS
1. Grant.
This
Option is granted pursuant
to NASDAQ Rule 4350(i)(1)(A)(iv) (the “NASDAQ
Exception”
or
“the
Rule”)
as an
inducement material to the Employee’s entering into employment with the
Company
and is
governed by, and subject to, all of the terms and conditions set forth in the
Rule. Notwithstanding anything in this Agreement to the contrary, to the extent
of any conflict between the terms of the Rule and this Agreement, the terms
of
the Rule shall control. Unless the context otherwise requires, terms used herein
shall have the same meaning as in the Rule.
2. Grant
as Nonqualified Stock Option.
This
Option is not intended to qualify as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended, and the regulations thereunder
(the “Code”),
and
shall be construed and administered as a “nonqualified” stock
option.
3. Vesting
and Exercisablity of Option if Service Continues.
Your
right to exercise this Option vests in increments beginning with the Vesting
Start Date, as shown on the cover sheet and below, and ending January 1, 2011(or
the occurrence of an event described in the Employment Agreement which results
in immediate vesting of the unvested portion of the Option). The portion of
the
total number of Option Shares for which this Option will be exercisable on
the
dates set forth below is:
May
10,
2007 one-fifth
(200,000 Option Shares)
January
1, 2008 two-fifths
(an additional 200,000 Option Shares, 400,000 in total)
January
1, 2009 three-fifths
(an additional 200,000 Option Shares,, 600,000 in total)
January
1, 2010 four-fifths
(an additional 200,000 Option Shares, 800,000 in total)
January
1, 2011 entire
Option Grant (an additional 200,000 Option Shares, 1,000,000 in total)
Provided
that the Optionee has remained in continuous employment with the Company or
any
affiliate until the referenced vesting date for such increment of the Option
as
listed on the vesting schedule set forth above, or the occurrence of an event
described in the Employment Agreement (and summarized in Section 4) which
results in immediate vesting of the unvested portion of the Option, the Option
shall be deemed vested to the extent each increment becomes vested on such
dates
in accordance with such schedule or due to the occurrence of such event, and
the
Optionee may exercise the Option for the additional number of Option Shares
as
represented by the portion set opposite the applicable vesting date. No unvested
portion of the Option may be exercised until such portion shall have vested
in
accordance with the vesting schedule set forth herein or in accordance with
the
Employment Agreement (and summarized in Section 4). Each option granted for
Option Shares shall be exercisable for five (5) years after that portion of
the
Option has vested, unless sooner terminated as set forth in the Employment
Agreement (as summarized in paragraph 4 herein).
4. Termination
of Service
(a)
Termination Other Than For Cause.
The
entire Option shall become fully vested and immediately exercisable upon (i)
termination of Optionee’s employment by the Company (or any successor) other
than for Cause; (ii) the Employee’s resignation for Good Reason; (iii) a Change
in Control; (iv) written notice by the Company (or any successor) or Optionee
that it or he does not concur in the automatic extension of the Term of the
Employment Agreement; (v) the Optionee’s death; or (vi) the Optionee’s becoming
Totally Disabled (the capitalized terms not defined herein have the meaning
assigned in the Employment Agreement). If the Optionee ceases to be an employee
of the Company, other than by reason of any of the foregoing events or a
termination for Cause, this Option may thereafter be exercised, to the extent
it
was vested and exercisable on the date of such termination, until the occurrence
of the earlier of either (i) thirty (30) days following such termination; or
(ii) expiration of this Option. Any portion of this Option that is not vested
on
the Optionee’s last day of employment shall immediately expire and be null and
void and shall no longer be exercisable or exercised.
Following
the Optionee’s death, the Option may be exercised by the Optionee’s estate,
personal representative or beneficiary. Any portion of the Option that has
not
been exercised by midnight of the expiration date for such Option shall
immediately expire and be null and void and shall no longer be exercisable
or
exercised. For purposes hereof, employment shall not be considered as having
terminated during any leave of absence if such leave of absence has been
approved in writing by the Company and if such written approval contractually
obligates the Company to continue the employment of the Optionee after the
approved period of absence; in the event of such an approved leave of absence,
vesting of the Option shall be suspended (and the period of the leave of absence
shall be added to all vesting dates) unless otherwise provided in the Company’s
written approval of the leave of absence. For purposes hereof, employment shall
include a consulting arrangement between the Optionee and the Company that
immediately follows termination of employment, but only if so stated in a
written consulting agreement executed by the Company that specifically refers
to
this Option.
(b)
Termination for Cause.
If the
employment of the Optionee is terminated for Cause, any unvested portion of
the
Option shall not thereafter be exercisable and shall be forfeited by the
Optionee.
5.
Partial
Exercise.
This
Option may be exercised in part at any time and from time to time within the
above limits and in accordance with Section 3 hereof, except that this Option
may not be exercised for a fraction of a share. The total number of vested
shares of Common Stock underlying this option shall be rounded down to the
nearest whole share and any fractional shares shall be aggregated with the
number of Option Shares that become vested shares in successive vesting
periods.
6.
Payment
of Exercise Price.
(a) Payment
Options.
The
aggregate exercise price for the Option Shares elected to be purchased shall
be
paid by one or any combination of the following forms of payment that are
applicable to this Option, as indicated on the cover page hereof:
| (i) |
in
cash, by certified or bank check payable to the order of the Company
in an
amount equal to the aggregate exercise price of such Option Shares;
or
|
| (ii) |
subject
to Section 6(a)(iii) below, if the Common Stock is then traded on
a
national securities exchange or on the Nasdaq National Market (or
successor trading system), by delivery of shares of Common Stock
having a
Fair Market Value equal as of the date of exercise to the option
price;or
|
| (iii) |
if
the Common Stock is then traded on a national securities market or
on the
Nasdaq National Market (or successor trading system), by method of
a
cashless exercise in such form as may be approved from time to time
in the
Board of Director’s sole discretion in an undertaking by a creditworthy
broker to deliver promptly to the Company sufficient funds to pay
the
exercise price, or delivery by the Optionee to the Company of a copy
of
irrevocable and unconditional instructions to a creditworthy broker
to
deliver promptly to the Company cash or a check sufficient to pay
the
exercise price.
|
(b)
Limitations
on Payment by Delivery of Common Stock.
If
Section 6(a)(iii) is applicable, and if the Optionee delivers Common Stock
held
by the Optionee (“Old
Stock”)
to the
Company in full or partial payment of the exercise price for the Option Shares
elected to be purchased and the Old Stock so delivered is subject to
restrictions or limitations imposed by agreement between the Optionee and the
Company, an equivalent number of Option Shares shall be subject to all
restrictions and limitations applicable to the Old Stock to the extent that
the
Optionee paid for the Option Shares by delivery of Old Stock, in addition to
any
restrictions or limitations imposed by this Agreement. Notwithstanding the
foregoing, the Optionee may not pay any part of the exercise price hereof by
transferring Common Stock to the Company unless such Common Stock has been
owned
by the Optionee free of any substantial risk of forfeiture for at least six
months.
7. Securities
Laws Restrictions on Resale.
Unless
registered under the Securities Act of 1933, as amended, or any successor
statute (the “Securities
Act”),
the
Option Shares will be of an illiquid nature and will be deemed to be
“restricted
securities”
for
purposes of the Securities Act. Accordingly, such shares must be sold in
compliance with the registration requirements of the Securities Act or an
exemption therefrom. Unless the Option Shares have been registered under the
Securities Act, each certificate evidencing any of the Option Shares shall
bear
a legend specified by the Company.
8. Method
of Exercising Option.
Subject
to the terms and conditions of this Agreement, this Option may be exercised
by
notice, given in writing or by an approved form of electronic transmission,
to
the Company at its principal executive office, or to such transfer agent as
the
Company shall designate. Such notice shall state the election to exercise this
Option and the number of Option Shares which have vested at the time of delivery
of such notice and which are being exercised and, if in writing, shall be signed
by the person or persons so exercising this Option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares
as
soon as practicable after the notice and the full purchase price have been
received. Such certificate or certificates shall be registered in the name
of
the person or persons so exercising this Option (or, if this Option shall be
exercised by the Optionee and if the Optionee shall so request in the notice
exercising this Option, shall be registered in the name of the Optionee and
another person jointly, with right of survivorship). In the event this Option
shall be exercised pursuant to these Terms and Conditions by any person or
persons other than the Optionee, such notice shall be accompanied by appropriate
proof of the right of such person or persons to exercise this
Option.
9. Option
Not Transferable.
This
Option is not transferable or assignable except by will or by the laws of
descent and distribution. During the Optionee’s lifetime only the Optionee can
exercise this Option; provided, however, that this Option may be transferred
pursuant to a domestic relations order (as defined in the Code) or to a
grantor-retained annuity trust or a similar estate-planning vehicle in which
the
trust is bound by all provisions of the Option which are applicable to the
Optionee. Reference to an Optionee, to the extent relevant in the context,
shall
include references to authorized transferees.
10. No
Obligation to Exercise Option.
The
grant and acceptance of this Option imposes no obligation on the Optionee to
exercise the Option.
11. No
Obligation to Continue Employment.
Neither
this Agreement, nor the grant of this Option imposes any obligation on the
Company to continue the Optionee in employment, or interferes in any way with
the right of the Company to terminate the Optionee’s employment at any
time.
12. Tax
Withholding.
If the
Company in its reasonable discretion determines that it is obligated to withhold
any tax in connection with the exercise of this Option, or in connection with
the transfer of, or the lapse of restrictions on, any Common Stock or other
property acquired pursuant to this Option, the Optionee hereby agrees that
the
Company may withhold from the Optionee’s wages or other remuneration the
appropriate amount of tax. At the reasonable discretion of the Company, the
amount required to be withheld may be withheld in cash from such wages or other
remuneration or in kind from the Common Stock or other property otherwise
deliverable to the Optionee on exercise of this Option. The Optionee further
agrees that, if the Company does not withhold an amount from the Optionee’s
wages or other remuneration sufficient to satisfy the withholding obligation
of
the Company, the Optionee will upon the Company’s reasonable demand either
deposit cash sufficient to satisfy the Company’s obligation or demonstrate that
sufficient estimated taxes have been deposited.
13. Disposition.
The
Optionee agrees to notify the Company in writing immediately after the Optionee
transfers any Option Shares and agrees to provide the Company with any
information concerning any such transfer reasonably required by the Company
for
tax purposes.
14. Lock-up
Agreement.
The
Optionee agrees that if the Company proposes to offer for sale to the public
any
shares of Common Stock pursuant to a public offering under the Securities Act
of
1933, as amended (the “Act”),
and
if requested by the Company or any underwriter engaged by the Company, not
to,
directly or indirectly, offer, sell, pledge, contract to sell (including any
short sale), grant any option to purchase, or otherwise dispose of any
securities of the Company held by him, her or them (except for any securities
sold pursuant to such registration statement) or enter into any “Hedging
Transaction” as (as defined below) relating to any securities of the Company
(including, without limitation, pursuant to Rule 144 under the Act or any
successor or similar exemptive rule hereinafter in effect) held by him, her
or
them for such period following the effective date of the registration statement
of the Company filed under the Act with respect to such offering, as the Company
or such underwriter shall specify reasonably and in good faith, not to exceed
ninety (90) days. For purposes of this Section 14, “Hedging
Transaction”
means
any short sale (whether or not against the box) or any purchase, sale or grant
of any right (including, without limitation, any put or call option) with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value from the
Common Stock.
15. Arbitration.
Any
dispute, controversy, or claim arising out of, in connection with, or relating
to the performance of this Agreement or its termination shall be settled by
arbitration in the state of New Hampshire, pursuant to the rules then obtaining
of the American Arbitration Association. Any award shall be final, binding
and
conclusive upon the parties and a judgment rendered thereon may be entered
in
any court having jurisdiction thereof.
16.
Administration.
All
questions of interpretation concerning this Agreement shall be determined by
the
Board of Directors. All determinations by the Board of Directors shall be final
and binding upon all persons having an interest in this option.
17. Miscellaneous.
(a) Notices.
Any
Notice required to be given under this Agreement shall
be
to the Company at its principal place of business and to the Employee at such
address
as he shall direct, and to their representatives:
If
to the
Company:
Xx.
Xxxxxxxx Xxxxxx
000
Xxxxx
Xxxxxx, 00xx
xxxxx
Xxx Xxxx, XX 00000
000-000-0000
xxxxxxx@xxxxxxxxx.xxx
If
to the
Optionee:
XxXxxxxx & English, LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxx, Esq.
212
609 6800
xxxxxxxx@xxxxxxxx.xxx
(b)
Entire Agreement; Modification.
This
Agreement constitutes the entire agreement between the parties relative to
the
subject matter hereof, and supersede all proposals, written or oral, and all
other communications between the parties relating to the subject matter of
this
Agreement; provided, however, that in case of any conflict with the terms of
the
Employment Agreement, the Employment Agreement shall control. This Agreement
may
be modified, amended or rescinded only in accordance with the terms of the
Rule.
(c) Issuances
of Securities; Changes in Capital Structure.
Except
as expressly provided herein, no issuance by the Company of shares of stock
of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to,
the
number or price of shares subject to this Option. No adjustments need be made
for dividends paid in cash or in property other than securities of the Company.
If there shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
combination or exchange of shares, spin-off, split-up or other similar change
in
capitalization or event, the restrictions contained in this Agreement shall
apply with equal force to additional and/or substitute securities, if any,
received by the Optionee in exchange for, or by virtue of his or her ownership
of, Option Shares, except as otherwise determined by the Board of
Directors.
(d) Severability.
The
invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability of any other
provision.
(e) Equitable
Relief.
The
parties hereto agree and declare that legal remedies may be inadequate to
enforce the provisions of this Agreement and that equitable relief, including
specific performance and injunctive relief, may be used to enforce the
provisions of this Agreement.
(f)
Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
(g)
Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Delaware, without giving effect to the principles of the conflicts
of laws thereof.
