Exhibit 99.1
EMPLOYMENT AGREEMENT
This Employment
Agreement (the “ Agreement ”) is made as of this
1st day of July, 2005 (the “ Effective Date ”)
by and between Peter Bouchard, a person residing at 21 Meadow
Drive, Hollis, New Hampshire (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 Company Vice President ,
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 Nondisclosure, Noncompetition and
Developments 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 Company Vice President
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.
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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 one hundred and eighty five thousand dollars
($185,000) (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
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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
maintenance, repairs, insurance, gasoline, tolls, parking and other
reasonable upkeep and 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, from time to
time the Employee may be granted equity in the Company, such equity
to be subject to the terms and conditions of the Company’s
Stock Option Plan and a Stock Option Agreement between the Company
and the Employee, which will include, among other things, a vesting
schedule, where applicable.
4.
Term . Subject to the earlier termination as hereafter
provided in Section 5, 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.
5.
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 4) 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.
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(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 5(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 Insider Trading
Policies.
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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 5(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 5(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 5(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 5(D). “ Good Reason ” shall be any
reason so deemed by the Board in its good faith exercise of
judgment.
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Subject to the Employee’s
eligibility for conditional severance described above, the
Employee’s resignation pursuant to this Section 5(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.
6.
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 5(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.
7.
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.
8.
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.
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9.
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
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