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Exhibit 10(pp)
EMPLOYMENT AGREEMENT
AGREEMENT (the "Agreement") dated this December 31, 2003 made by
and
between Presstek, Inc., a Delaware
corporation, its parents, subsidiaries,
divisions, or affiliated entities,
successors and assigns (the "Employer"), and
Moosa E. Moosa (the "Employee").
WHEREAS, both the Employer and the Employee now wish for the
Employee
to continue to be employed as Chief
Financial Officer and Vice President of
Finance of the Employer; and
WHEREAS, the Employee wishes to continue his employment with
the
Employer and the Employer wishes to
continue its employment of the Employee
under this Agreement on the date this
Agreement is executed by the parties as
set forth above;
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. Commencing from the date of this Agreement as set
forth
above (the "Start Date"), the Employee
shall continue his employment as Chief
Financial Officer and Vice President of
Finance of the Employer under the terms
of this Agreement. The Employee shall
render executive, financial, policy and
other management services to the Employer
of the type customarily performed by
persons situated in similar executive and
management capacities. The Employee
shall perform such other related duties as
the Board of Directors of the
Employer may from time to time reasonably
direct.
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 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
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Employer or the Employee gives written
notice to the other, at least 90 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 TWENTY-FIVE
THOUSAND U.S. DOLLARS And ZERO CENTS
($225,000) 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 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.
5.
Discretionary Bonuses. During the Term of this Agreement, the
Employee
may be entitled to receive an annual cash
bonus of up to 40% of the Employee's
then annual base salary, based on the
Employee's contribution to the
accomplishment of key annual corporate
objectives mutually determined by the
Employee and the Employer. The
determination of whether to pay a discretionary
bonus, and the amount of the bonus, if any,
shall be made by the Employer in its
sole and absolute discretion. During the
Term of this Agreement, the Employee
also may be entitled to participate in any
incentive compensation and bonus
programs authorized and declared by the
Board of Directors or Compensation
Committee of the Employer for the benefit
of the Employee. The determination of
whether the Employee is eligible to
participate in any such incentive
compensation and bonus programs, and the
amount of incentive compensation and
bonus paid, if any, shall be made solely by
the Employer. No other compensation
provided for in this Agreement shall be
deemed a substitute for the Employee's
right to participate in such incentive
compensation or bonus programs when and
as declared.
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 1998 Stock
Incentive Plan, the Employee shall be
granted, on the date hereof (the "Grant
Date"), options to purchase 60,000 shares
of common stock of the Employer at a
price per share equal to the fair market
value of the shares on the Grant Date,
such options to vest as follows: 25% on the
first anniversary of the Grant Date,
an additional 25% on the second anniversary
of the Grant Date, an additional 25%
on the third anniversary of the Grant Date
and the remaining 25% on the fourth
anniversary of the Grant Date (subject to
the earlier vesting of the options, in
their entirety, upon the execution by the
Employer of a definitive
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agreement relating to a Trigger Event). For
this purpose, "Trigger Event" shall
mean (a) the sale by the Employer of all or
substantially all of its assets, or
(b) the acquisition of a majority of the
shares of common stock of the Employer
by a third party pursuant to which holders
of the Employer's common stock prior
to such transaction receive equity
securities or cash from the third party in
exchange for their common stock of the
Employer, and to be in the form of, and
have such other terms and conditions as are
set forth in the option agreement
annexed hereto as Exhibit A.
In addition to the foregoing stock options, and 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 Employee may also be entitled during the Term of this Agreement
to
any fringe benefits which may be or become
available by the Employer for the
benefit of the Employee during the Term of
this Agreement, and to the payment or
reimbursement of reasonable expenses for
attending annual and periodic meetings
of trade associations, and any other
benefits which are commensurate with the
duties and responsibilities to be performed
by the Employee under this
Agreement.
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 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.
(a) (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
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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. Regardless of the reason
for the termination of the Employee's
employment, 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.
(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. However, if the
Employer's termination of the
Employee's employment without Cause occurs
in connection with, or within one and
one-half (1-1/2) 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. 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:
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(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) 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) in
connection with, or within one (1) and
one-half years after, a Change in Control
or approved by the Board of Directors of
the Employer. In the event that the
Employee violates this provision, or in the
event that the Employee is
terminated for Cause, the Employee shall be
entitled to no further payments
pursuant to this Agreement.
(c) 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, 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 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.
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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 representatives responsible
for entering into contracts with the
Employer; specific customer, distributor
and supplier needs and requirements;
the details of contracts and proposals
between the Employer and its customers,
distributors and suppliers; selling and
marketing strategies, prices, costs and
profit margins; the names, addresses and
other contact information of purchasing
agents, vendors or other entities;
purchasing techniques, methods, procedures
and processes; manufacturing and production
techniques, methods, procedures and
processes; other techniques, methodologies
and processes used by the Employer in
the conduct of its business; techniques,
methods, procedures, know-how,
show-how, prototypes and technical
specifications; computer data, software,
software codes, computer models, research
projects, data processing and other
programs; production and manufacturing
equipment and operating practices;
information with respect to products and
product formulae, designs, plans for
future business, new business, products or
other developments; new or innovative
ideas, customer proposals, marketing plans
and ideas, and future developments or
strategies; information pertaining to
research and development, acquisitions or
divestitures, marketing and sales, cost
cutting, revenue generation, or other
matters concerning the Employer's planning
and strategy; and other nonpublic
financial and other information of the
Employer disclosed to or known by the
Employee as a consequence of or through the
Employee's employment (or other
service relationship) with the Employer
(including information conceived,
originated, discovered or developed by the
Employee), which information is not
generally known in the relevant trade or
industry or public knowledge. The
Employee acknowledges and agrees that the
Confidential Information is not
generally known or available to the public,
but has been developed, compiled or
acquired by the Employer at its great
effort and
