Exhibit 99.1
EMPLOYMENT
AGREEMENT
AGREEMENT (the
“Agreement”) dated this January 24, 2005 made by
and between Presstek, Inc., a Delaware corporation, its parents,
subsidiaries, divisions, and affiliated entities, successors and
assigns (the “Employer”), and Susan A. McLaughlin (the
“Employee”).
WHEREAS, both the Employer and the
Employee wish for the Employee to be employed by Employer in
capacity of Senior Vice President of Presstek, Inc. and President
of ABD International, Inc.;
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. Definitions . For the
purposes of this Agreement, the following terms shall have the
following respective meanings. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set
forth in the Plan.
“
Person ” shall mean any individual,
corporation, partnership (limited or general), limited liability
company, association, trust, joint venture, unincorporated
organization or any similar entity or otherwise.
“
Restricted Shares ” shall initially mean all of
the Shares being purchased by the Grantee on the Grant Date
pursuant to Section 7(b)(2) hereof; provided that
Shares shall no longer be Restricted Shares and shall become Vested
Shares with respect to five thousand (5,000) of the Shares on the
first anniversary of the Grant Date, five thousand (5,000) of the
Shares on the second anniversary of the Grant Date, and five
thousand (5,000) of the Shares on the third anniversary of the
Grant Date. Notwithstanding the foregoing, as of the effective date
of any Change of Control, one hundred percent (100%) of the total
number of the Shares shall no longer be Restricted Shares and shall
become Vested Shares provided that the Employee is employed by the
Employer, or its successor, on the effective date of such Change of
Control.
“
Termination Event ” shall mean the termination
of the Employee’s employment (i) by the Employer with or
without Cause or (ii) by the Employee for any reason
whatsoever.
“
Vested Shares ” shall mean all Shares which are
not Restricted Shares.
2. Consideration. In
consideration for the Employee’s execution of this Agreement,
the Employer agrees that the Employee shall become employed by the
Employer 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 16) or the Change in Control
payment
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(Section 19) as set
forth in this Agreement (subject to her compliance with
Sections 17 and 18 of this Agreement). The Employee
understands, acknowledges and agrees that the Employee would not
receive the consideration specified in this Section 2, except
for the Employee’s execution of this Agreement and the
fulfillment of the promises contained herein.
3. Employment.
Commencing as of a date to be mutually determined by the Employee
and the Employer, but in no event later than February 1, 2005
(the “Start Date”), the Employee shall be employed as
Senior Vice President of Presstek, Inc. and President of ABD
International, Inc. through the Term of, and in accordance with the
terms of, this Agreement. The Employee shall render executive,
general management, 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 Chief
Executive Officer and Board of Directors of the Employer may from
time to time reasonably direct.
4. 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 as of the date
specified in Section 3 and shall initially end three
(3) years thereafter, on the day preceding the third
anniversary of the initial term, unless terminated sooner in
accordance with the provisions hereof. The Term of employment under
this Agreement shall, at the expiration of the initial Term and on
each anniversary thereafter (commencing with the third
anniversary), be automatically extended for an additional year
unless the Employer or the Employee gives written notice to the
other, at least 90 days prior to such anniversary date, that
she 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.
5. Compensation. The
Employer agrees to pay the Employee during the Term of this
Agreement an annual base salary equal to TWO HUNDRED AND FIFTY
THOUSAND U.S. DOLLARS AND ZERO CENTS ($250,000.00) with the salary
to be reviewed annually during the Term of this Agreement by the
Chief Executive Officer of the Employer. 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, if any, not reduce the salary payable to the
Employee under this Section 5.
6. 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
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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 Employer’s executives. 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.
7. Retirement and Employee
Benefit Plans; Fringe Benefits; Equity or Securities
Compensation. (a) Subject to the long-term compensation
plan(s) that, subsequent to the execution of this Agreement, may be
developed by the Compensation Committee of the Board of Directors
of Presstek, Inc. (the “Committee”), the Employee shall
receive compensation under terms and conditions as shall so be
determined by the Committee at its sole and unfettered
discretion.
(b) In
addition to such other compensation as may be set out in this
Agreement, Employee shall receive the following Equity
Compensation:
(1) Subject to the terms and conditions of the
Employer’s 2003 Stock Option and Incentive Plan (the “
Plan ”), the Employee shall be granted, on the
date Employee actually commences employment with Employer (the
“Grant Date”), options to purchase one hundred fifty
five thousand (155,000) 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. Fifty thousand (50,000) of such options shall be
immediately exercisable on the Grant Date and the remaining one
hundred five thousand (105,000) of such options shall become
exercisable as to thirty five thousand (35,000) shares on each of
the first, second and third anniversaries of the Grant Date;
and
(2) Subject to the terms and conditions of the Plan, the
Employer hereby sells and issues to the Employee fifteen thousand
(15,000) shares of common stock, par value $0.01 per share (“
Common Stock ”), of the Employer (subject to
the provisions below, the “ Shares ”), on
the Grant Date for a per share price of $0.01 (the “Purchase
Price”), subject to the terms and conditions set forth herein
and in the Plan. Such Shares shall initially be “Restricted
Shares.” The Employee agrees to the provisions set forth
herein and in the Plan and acknowledges that each such provision is
a material condition of this Agreement.
8. Repurchase of Restricted
Shares .
(a) Upon
the occurrence of a Termination Event for any reason, the Employee
shall forthwith sell to the Employer for the Purchase Price (the
“Repurchase”) all such Restricted Shares owned by, or
otherwise in the possession of, the Employee on the effective date
of the Termination Event.
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(b) Without
limitation of any other provision of this Agreement or other
rights, in the event that the Employee is required to sell
Restricted Shares pursuant to the provisions of this Section 8 and
in the further event that such Employee refuses or for any reason
fails to deliver forthwith to the Employer such Restricted Shares
the certificate or certificates evidencing such Restricted Shares
together with a related stock power, the Employer may determine
that such Restricted Shares shall at such time be deemed to have
been sold, assigned, transferred and conveyed to the Employer, the
Employee shall have no further rights thereto, and the Employer
shall record such transfer in its stock transfer book or in any
appropriate manner.
9. Restrictions on Transfer
of Restricted Shares . (a) None of the Restricted Shares
held by the Employee shall be sold, assigned, transferred, pledged,
hypothecated, given away or in any other manner disposed of or
encumbered, whether voluntarily or by operation of law, unless such
transfer is in compliance with all applicable securities laws
(including, without limitation, the Act), and such disposition is
in accordance with the terms and conditions of this Section 9.
In connection with any transfer of Restricted Shares, the Employer
may require the transferor to provide at the transferor’s own
expense an opinion of counsel, satisfactory to the Employer, that
such transfer is in compliance with all applicable foreign, federal
and state securities laws (including, without limitation, the Act).
Any attempted disposition of Restricted Shares not in accordance
with the terms and conditions of this Section 9 shall be null
and void, and the Employer shall not reflect on its records any
change in record ownership of any Restricted Shares as a result of
any such transfer, shall otherwise refuse to recognize any such
transfer and shall not in any way give effect to any such transfer
of any Restricted Shares. Subject to the foregoing general
provisions, Restricted Shares may be transferred pursuant to the
following specific terms and conditions:
(b)
Transfers Upon Death . Upon the death of the Employee,
Restricted Shares may be transferred by will or by the laws of
descent and distribution; provided that all such Restricted
Shares at the time of such death shall be subject to the
Repurchase. Notwithstanding the foregoing, upon the death of the
Employee, all Restricted Shares shall be and remain subject to
Section 9 and the Employee’s estate, executors,
administrators, personal representatives, heirs, legatees and
distributees shall be obligated to convey such Restricted Shares to
the Employer or its assigns under the terms contemplated
thereby.
10. Legends . Any
certificate(s) representing the Shares shall carry substantially
the following legends:
“The shares of stock
represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the “Act”), or the
applicable securities laws of any state. The shares may not be
sold, pledged or otherwise transferred without an effective
registration statement for such shares under the Act and such state
laws,
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or an available exemption therefrom, or an opinion of counsel
satisfactory to the Company to the effect that such registration is
not required.”
“The transferability of this
certificate and the shares of stock represented hereby are subject
to the restrictions, terms and conditions (including repurchase
rights, rights of first refusal and restrictions against transfers)
contained in a certain Restricted Stock Agreement, as amended from
time to time, between the Company and the holder of this
certificate (a copy of which is available at the offices of the
Company for examination).”
11. Escrow . In order to
carry out the provisions of Sections 8 and 9 of this Agreement
more effectively, the Employer shall hold the Restricted Shares in
escrow together with separate stock powers executed by the Employee
in blank. The Employer shall not transfer the Restricted Shares on
the basis of such stock power except as provided in this Agreement.
At such time as any Restricted Shares become Vested Shares, the
Employer shall, at the written request of the Employee, deliver to
the Employee a certificate representing such Vested Shares with the
balance of the Restricted Shares to be held in escrow pursuant to
this Section 11 .
12. Withholding Taxes .
The Employee acknowledges and agrees that the Employer has the
right to deduct from payments of any kind otherwise due to the
Employee, or from the Restricted Shares held pursuant to
Section 11 hereof, any federal, state or local taxes of
any kind required by law to be withheld with respect to the
purchase of the Restricted Shares by the Employee. In furtherance
of the foregoing the Employee agrees to elect, in accordance with
Section 83(b) of the Internal Revenue Code of 1986, as amended, to
recognize ordinary income in the year of acquisition of the
Restricted Shares, and to pay to the Employer all withholding taxes
shown as due on his or her Section 83(b) election form, or
otherwise ultimately determined to be due with respect to such
election, based on the excess, if any, of the fair market value of
such Restricted Shares as of the date of the purchase of such
Shares by the Employee over the purchase price paid for such
Restricted Shares.
13. Miscellaneous
Provisions .
(a)
Administration . All questions of interpretation concerning
this grant of Restricted Shares shall be determined by the
Committee. All determinations by the Committee shall be final and
binding upon all persons having an interest in the Restricted
Shares.
(b)
Record Owner; Dividends . The Employee, during the duration
of this Agreement, shall be considered the record owners of and
shall be entitled to vote the Restricted Shares. The Employee shall
be entitled to receive all dividends and any other
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distributions declared on
the Restricted Shares; provided , however , that the
Employer is under no duty to declare any such dividends or to make
any such distribution.
(c)
Equitable Relief . The parties hereto agree and declare that
legal remedies are 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.
(d)
Change and Modifications . This Agreement may not be orally
changed, modified or terminated, nor shall any oral waiver of any
of its terms be effective. This Agreement may be changed, modified
or terminated only by an agreement in writing signed by the
Employer and the Employee.
In addition to the foregoing
consideration, 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 restricted 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, at its sole and unfettered discretion, 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 standard 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.
14. Standards. The
Employee shall perform her duties and responsibilities under this
Agreement in accordance with such reasonable standards as are
established from time to time by the Chief Executive Officer of
Presstek, Inc, in his sole and absolute discretion.
15. 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 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.
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16. Termination of
Employment.
(a) (i) The Employer may
terminate the Employee’s employment at any time, but any
termination by the Employer other than termination for Cause (as
defined in Section 16(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 compensation or other benefits, including payment
of legal fees and expenses incurred, for any period after
termination for Cause or if the Employee terminates her employment
for any reason in violation of Section 16 (b) of this
Agreement, except as otherwise required by law. Should the Employee
so terminate her employment in violation of Section 16
(b) of this Agreement, Employee shall not be entitled to any
independent benefits due the Employee under any employee benefit
plan in which the Employee is then a participant, except as may be
required by applicable law or as may be provided in the related
benefit plan.
(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 4 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 16(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 19(b)
hereof, the amount payable to the Employee shall be exclusively
determined under Section 19(a) as limited by Section 19(c) hereof,
and the Employer shall not be required to make the payments set
forth in this Section. Should the Employer terminate the Employment
of the Employee for any reason except for Cause, the Severance
Payments under this Section 16(a)(ii) shall not be reduced by
any compensation which the Employee may receive for other
employment with another employer after termination of her
employment with the Employer. Notwithstanding anything stated
herein to the contrary, and for purposes of clarity, should the
Employer terminate the Employment of the Employee for Cause, or
should the Employee terminate her employment for any reason in
violation of Section 16 (b) of this Agreement, the
Employee shall not be entitled to receive Severance Payments. In
addition, should the employment of the Employee terminate for any
reason but by termination for Cause or by termination of the
employment by the Employee in violation of Section 16
(b) of this Agreement, the Employee shall be entitled to have
all existing retirement or employee benefits of the type referred
to in Section 7(a) 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
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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.
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 her obligations under this Agreement, including, but
not limited to, her obligations under Sections 17 and 18 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, |
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(B) |
theft from the Employer |
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