Exhibit
99.1
EMPLOYMENT AGREEMENT
AGREEMENT (the “Agreement”) dated this February
27, 2007 (the “Effective Date”) made by and
between Presstek, Inc., a Delaware corporation, its parents,
subsidiaries, divisions, or affiliated entities, successors and
assigns (the “Employer”), and Jeffrey Cook, (the
“Employee”).
WHEREAS,
both the Employer and the Employee wish for the Employee
to be
employed as Senior
Vice President and Chief
Financial Officer of
the Employer; and
NOW,
THEREFORE, in consideration of the promises hereafter
contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto AGREE as follows:
1.
Consideration. In
consideration for the Employee’s execution of this Agreement,
the Employer agrees that the Employee’s employment shall
continue as set forth in this Agreement, the Employee shall be
permitted access to the Employer’s confidential information
and trade secrets and the Employee shall be eligible to receive
post-Term Severance Payments (Section 9) or the Change in Control
payment (Section 12) as set forth in this Agreement (subject to his
compliance with Sections 10 and 11 of this Agreement). The Employee
understands, acknowledges and agrees that the Employee would not
receive the consideration specified in this Section 1, except for
the Employee’s execution of this Agreement and the
fulfillment of the promises contained herein.
2.
Employment. During
the term of this Agreement, the Employee agrees to serve as Senior
Vice President, Chief Financial Officer, and as a Corporate
Officer, 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 the Chief Executive Officer, the
Board of Directors, and such other 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.
3. Employment Term. “Term,” as used in
this Agreement, shall refer to the Term of this Agreement as
defined in this Section. The Term of the employment under this
Agreement shall commence on February 28, 2007, (the “Start
Date”) and shall initially end three years thereafter, on the
day preceding the third anniversary of the Start Date, unless
terminated sooner in accordance with the provisions hereof. The
Term of employment under this Agreement shall, on each anniversary
of the Start Date thereafter (commencing with the third anniversary
of the Start Date), be automatically extended for an additional
year unless the Employer or the Employee gives written notice to
the other, at least 180 days prior to such anniversary date, that
he or it does not concur in such extension. If neither party gives
notice of non-concurrence in such extension, the Term will be
automatically extended for an additional year, unless terminated
sooner in accordance with the provisions hereof.
4. Compensation. The Employer agrees to pay the
Employee during the Term of this Agreement an annual base salary
equal to TWO HUNDRED AND SEVENTY FIVE THOUSAND U.S. DOLLARS And
ZERO CENTS ($275,000) with the salary to be reviewed no less than
annually during the Term of this Agreement by the Board of
Directors or Compensation Committee of the Employer. In the annual
salary review, the Board of Directors may compensate the Employee
for increases in the market value of the Employee's duties and
responsibilities hereunder and may provide for performance or merit
increases. The base salary of the Employee shall not be decreased
at any time during the Term of this Agreement from the amount then
in effect, unless the Employee otherwise agrees in writing. The
salary shall be payable to the Employee in accordance with the
Employer’s payroll system, as determined by the Employer, but
not less frequently than monthly. All payments and benefits in this
Agreement shall be subject to all applicable federal, state and
local withholding, payroll and other taxes.
Participation in discretionary bonuses, retirement and other
employee benefit plans and fringe benefits shall not reduce the
salary payable to the Employee under this Section 4, except as set
out herein.
5.
Discretionary Bonuses.
Employee
will be entitled to a guaranteed cash bonus for 2007 of $165,000,
pro-rated so that Employee is paid one-twelfth (1/12) of said
amount for each full month of service completed during calendar
year 2007, said bonus to be paid by March 1, 2008. During the
subsequent term hereof, the Employee also may be eligible to
receive a bonus of up to percent (60%) 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.
6.
Stock Option Grant; Participation in Stock Option, Retirement and
Employee Benefit Plans; Fringe Benefits. Subject
to the terms and conditions of the option agreement annexed hereto
as Exhibit A and the Employer’s 2003 Stock Incentive Plan,
the Employee shall be granted the right to purchase 250,000 shares
of the Company's common stock, of which, the right to purchase
41,666 shares shall vest upon signing of this agreement. The
remaining 208,334 shares shall vest equally over a period of five
(5) years at the rate of 20% per year on each anniversary date of
the commencement of employment. The per share exercise 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.
Said options are subject to the earlier vesting, in their entirety,
upon a Change in Control, as that term is defined herein, or,
should Employer elect not to renew this agreement upon expiration
of the initial term..
In
addition to the foregoing stock options, are subject to the
eligibility requirements that may be applicable, the Employee
may be entitled to participate during the Term in any plan or
arrangement of the Employer relating to stock options, stock
purchases, pension, thrift, or profit sharing benefits, or
other benefits under qualified or non-qualified deferred
compensation plans, group life insurance, medical coverage,
education or any other employee benefits that the Employer may
adopt or make available for the benefit of the
Employee.
The
Employer fully reserves its rights to change, modify or
discontinue any of its stock purchase, retirement, employee
benefit or other fringe benefit plans at any time during the
Term of this Agreement in its sole and absolute discretion,
and in accordance with applicable law.
7.
Standards. The
Employee shall perform his duties and responsibilities under this
Agreement in accordance with such reasonable standards as are
established from time to time by the Chief Executive Officer and
President and/or Board of Directors of the Employer, in its sole
and absolute discretion.
8.
Voluntary Absences; Vacations. The
Employee shall be entitled to an annual paid vacation during the
Term of this Agreement in accordance with the Employer’s
policy of executives of four (4) weeks per year or such longer
period as the Board of Directors may approve 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.
9.
Termination of Employment.
The
Employee’s employment with the Employer may terminate
either by either:
| (a) |
termination
by the Board of Directors of the Employer either (i) for Cause (as
defined in Section 9(a)(iii) below) or (ii) without
Cause;
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| (b) |
termination
by the Employee either for (i) Good Reason (as defined in Section
9(b) below or (ii) Not Good Reason (as defined in Section 9(b);
or
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| (c) |
death
or disability of the Employee.
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(a)
Termination by the Board .
(i) The Board of Directors may terminate the Employee’s
employment at any time, but any termination by the Employer other
than termination for Cause (as defined in Section 9(a)(iii) below)
shall not prejudice the Employee’s right to receive
compensation and other benefits under this Agreement, except as
otherwise stated in this Agreement. In the event of a termination
for Cause, the Employee shall have no right to receive payment,
compensation or other benefits, including payment of legal fees and
expenses incurred, for any period after termination for Cause
except as otherwise required by law. Where the Employer terminates
the employment of the Employee other than termination for Cause,
the Employer shall continue to be subject to any independent
obligation to the Employee under any employee benefit plan in which
the Employee is then a participant. Where the Employee’s
employment is terminated for Cause, the Employer shall have no
obligation to continue to be subject to any independent obligations
to the Employee under any employee benefit plan for which the
Employee is then a participant, except as otherwise required by
law.
(ii)
In
the event that the Employee’s employment ceases by
reason of the Employer’s termination of the
Employee’s employment during the Term other than for
Cause, or if either
party provides the other party with written notice of the
party’s non-concurrence in the automatic extension of
the Term, as set forth in Section 3 of this Agreement, the
Employer shall be obligated concurrently with the termination
of such employment, in lieu and replacement of the
Employee’s entitlement to any compensation and other
benefits under this Agreement pursuant to Section 9(a)(i), to
make severance payments to the Employee in an aggregate amount
that is equal to the Employee's then current annual base
salary for a period of one (1) year (collectively, the
"Severance Payments"). The Severance Payments shall be paid
after termination of employment in equal monthly installments
according to the Employer’s normal payroll practices
then in effect. In the event termination under this subsection
occurs before Employee has completed twelve months of service,
Employers obligation to make severance payments shall be
limited to one month of base salary for each completed full
month of service, but in no case less than six months of base
salary.
However,
if the Employer's termination of the Employee's employment
without Cause occurs in connection with, or within one and
one-half (1 ½) years after, a "Change in Control" as
defined in Section 12(b) hereof, the amount payable to the
Employee shall be exclusively determined under Section 12(a)
as limited by Section 12(c) hereof, and the Employer shall not
be required to make the payments set forth in this Section.
The Severance Payments under this Section 9(a)(ii) shall not
be reduced by any compensation which the Employee may receive
for other employment with another employer after termination
of his employment with the Employer .
In addition, the Employee shall be entitled to have all
existing retirement or employee benefits of the type referred
to in Section 6 hereof continue for the remainder of the Term
when the Agreement is terminated, except as otherwise required
by law or provided in the related retirement or other employee
benefit plans or agreements. Notwithstanding the foregoing,
the Employer shall have no obligation to make any
contributions to any retirement plan applicable to the
Employee after the date the Employee ceases to be employed by
the Employer except as may be required by such applicable
plan. Notwithstanding anything stated herein to the contrary,
and for purposes of clarity, should the Employer terminate the
Employment of the Employee for Cause, the Employee shall not
be entitled to receive Severance Payments. In the event of a
retirement plan, the Employee shall be entitled to
contributions made by the Employer to the retirement plan on
the Employee’s behalf prior to the date of the
Employee’s termination, which have vested and for which
the Employee is otherwise eligible in accordance with the
written terms of the official plan documents governing any
applicable retirement plan. The Employer shall have no
obligation to make the Severance Payments set forth in this
Section unless the Employee fully complies with his
obligations under this Agreement, including, but not limited
to, his obligations under Sections 10 and 11 of this
Agreement.
(iii)
References in this Agreement to “termination for
Cause” shall mean termination on account of acts or
omissions of the Employee which constitute Cause as defined
below. Any determination with respect to a termination for
Cause shall require the approval of the Board of Directors of
the Employer. “Cause” shall mean any of the
following:
(A)
conviction
of a felony,
(B)
theft
from the Employer,
(C)
breach
of fiduciary duty involving personal profit,
(D)
sustained
and continuous conduct by the Employee which adversely affects
the reputation of the Employer,
(E)
continued
failure of the Employee to substantially and satisfactorily
perform his duties or obligations under this Agreement
following twenty (20) days’ notice by the Employer to
the Employee and a failure by the Employee to correct the
deficiency cited in such notice (other than any such failure
resulting from the Employee’s incapacity due to physical
or mental illness).
(b)
Termination by the Employee .
The Employee shall have no right to terminate his employment under
this Agreement prior to the end of the Term of this Agreement,
unless such termination is either for Good Reason (as described in
Section 12(a) hereof) (i) in connection with, or within one (1) and
one-half years after, a Change in Control; or (ii) approved by the
Board of Directors of the Employer. For purposes of this Agreement,
the term “Not Good Reason” shall mean such termination
by the Employee of his employment for reasons other than for Good
Reason. In the event that the Employee terminates his employment
for Not Good Reason, the Employee shall have no right to receive
compensation or other benefits, including payment of legal fees and
expenses incurred, for any period after such termination except as
otherwise required by law. Where the Employee terminates his
employment for Good Reason, the Employer shall continue to be
subject to any independent obligation to the Employee under any
employee benefit plan in which the Employee is then a participant.
Where the Employee terminates his employment for Not Good Reason,
the Employer shall have no obligation to continue to be subject to
any independent obligations to the Employee under any employee
benefit plan for which the Employee is then a participant, except
as otherwise required by law.
Notwithstanding
anything stated herein to the contrary, and for purposes of
clarity, should the Employee terminate his Employment for Not
Good Reason, the Employee shall not be entitled to receive
Severance Payments as described in Section 9(a)(ii). However,
nothing herein shall in any way affect the Employee’s
entitlement to indemnification under Paragraph 15 of the
Agreement entitled “Legal Expenses” unless
Employee is terminated by the Employer prior to the Term of
this Agreement for “Cause” (as defined in Section
9(a)(iii) of the Agreement) and the reason for
Employee’s termination for “Cause” is
related to the claim with respect to which indemnification is
sought.
(c)
Death
and Disability.
The Employee’s employment under this Agreement may also cease
prior to the end of the Term of this Agreement in the event of the
Employee’s death or upon the Employee becoming “Totally
Disabled.” For purposes of this Agreement, “Totally
Disabled” shall mean such situation where the Employee,
because of injury (the “Injury”) or sickness (the
“Sickness”), the Employee is unable to perform the
material duties of his regular occupation for a specified period;
and, solely due to injury or sickness, he is unable to earn more
than the percentage of their Indexed Covered Earnings (as that term
is defined in the Employer’s Long-Term Disability Summary
Plan Description) from working in his regular occupation.
Thereafter, “Totally Disabled” shall mean such
situation where the Employee is disabled in that his injury or
sickness makes his unable to perform the material duties of any
occupation for which he may reasonably become qualified based on
education, training or experience; and solely due to such Injury or
Sickness, he is unable to earn more than the percentage of their
Indexed Covered Earnings (as that term is defined in the
Employer’s Long-Term Disability Summary Plan Description).
For purposes of this Agreement the Employee shall be “Totally
Disabled” as of the date he becomes entitled to receive
disability benefits under the Employer’s long term disability
plan. In the event that the Employee’s employment is
terminated by his death or upon becoming “Totally
Disabled,” the Employee or the Employee’s heirs or
estate (as applicable), shall be entitled to receive (i) any
accrued but unpaid salary for services rendered to the date of
termination as determined pursuant to Section 4, (ii) any vacation
accrued under the Employer’s policy to the date of
termination, and (iii) any accrued but unpaid expenses pursuant to
Section 14 of this Agreement. The benefits to which the Employee
may be entitled upon termination pursuant to the plans and
arrangements referred to in Section 6 of this Agreement shall be
determined and paid in accordance with the terms of such plans and
arrangements.
(d)
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
Severance Payments described above.
10.
Confidential Information and Non-Competition.
(a)
“Confidential
Information” shall mean trade secrets or confidential
information relating to the Employer, its customers,
affiliates and their respective businesses, including, but not
limited to, the identity of the Employer’s customers;
the entity of distributors and suppliers of the Employer; the
identity of represe
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