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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): February 15, 1996
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PRESSTEK, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 0-17541 02-0415170
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
8 Commercial Street, Hudson, New Hampshire 03051
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (603) 595-7000
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Former name or former address, if changed since last report
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Item 2. Acquisition or Disposition of Assets.
On February 15, 1996, Presstek, Inc. (the "Company") acquired
90% of the outstanding common stock (the "Purchased Shares") of Catalina
Coatings, Inc., an Arizona corporation ("Catalina"). Catalina is engaged in the
development, manufacture and sale of vacuum deposition coating equipment and the
licensing and sublicensing of patent rights with respect to vapor deposition
process to coat moving webs of material at high rates. The Company intends to
continue the business of Catalina which will operate as a subsidiary of the
Company. The Purchased Shares were acquired from David G. Shaw ("Shaw"), Marc G.
Langlois ("Langlois"), and David G. Shaw and Lynn R. Shaw, as trustees of the
David and Lynn Shaw Charitable Remainder Unitrust, dated February 12, 1996
(collectively, the "Selling Shareholders"), pursuant to a Stock Purchase
Agreement (the "Stock Purchase Agreement") dated and effective as of January 1,
1996 by and among the Company, the Selling Shareholders and John E. Madocks
("Madocks") and Catalina. The aggregate consideration paid by the Company
pursuant to the Stock Purchase Agreement was $8,400,000, of which $8,200,000
represented the purchase price of the Purchased Shares and $200,000 represented
consideration for the non-competition and confidentiality covenants of Shaw and
Langlois.
Simultaneous with the closing of the acquisition (the "Closing"), the
Company, Catalina, Shaw, Langlois and Madocks entered into a Put and Call Option
Agreement (the "Option Agreement") which provides the Company with the right, at
any time after February 15, 2000, to acquire the remaining 10% of the
outstanding common stock of Catalina (the "Remaining Shares") from Shaw,
Langlois and Madocks for aggregate consideration of $2,000,000. The Option
Agreement also provides Shaw, Langlois and Madocks with the right, at any time
after August 15, 2000, to cause the Company to purchase the Remaining Shares for
aggregate consideration of $1,000,000. The Option Agreement will terminate if
Catalina consummates an initial public offering of its securities prior to
February 15, 2000.
Simultaneous with the Closing: (i) Catalina entered into employment
agreements with each of Shaw and Langlois which provide for their employment as
President and Technical Director, and Vice-President of Engineering,
respectively, of Catalina for a four-year employment term; (ii) Messrs. Shaw,
Langlois and Madocks entered into confidentiality and non-competition agreements
with the Company and Catalina, (iii) the Company granted Messrs Shaw, Langlois
and Madocks five-year non-qualified options to purchase 47,500, 47,500 and 5,000
shares, respectively, of the Company's common stock at an exercise price of
$89.50 per share and (iv) Catalina granted to Messrs. Shaw, Langlois and Madocks
an option to purchase 2.375%, 2.375% and .250%, respectively, of the issued and
outstanding common stock of Catalina in the event that a registration statement
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relating to an initial public offering of Catalina common stock is declared
effective by the Securities and Exchange Commission not later than 5:00 Eastern
Standard Time on February 15, 2000.
The source of the consideration paid for the Purchased Shares as well
as the non-competition and confidentaility covenants of Shaw and Langlois was a
private placement of common stock of the Company.
The consideration paid by the Company for the Purchased Shares was
determined by negotiations with the Selling Shareholders and their
representatives.
The descriptions of the Stock Purchase Agreement and the other
agreements described herein, are qualified in their entirety by reference to the
copy of the Stock Purchase Agreement and the other agreements filed as exhibits
to this report and which are incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) Financial statements of business acquired.
It is impracticable to provide the required financial
statements of Catalina at this time. The required
financial statements will be filed under cover of
Form 8-K/A within sixty days of the date this Form
8-K was required to be filed.
(b) Pro forma financial information.
It is impracticable to provide the required pro forma
financial information at this time. The required pro forma
financial information will be filed under cover of
Form 8-K/A within sixty days of the date this Form
8-K was required to be filed.
(c) Exhibits.
Exhibit 2(a) Stock Purchase Agreement dated and
effective as of January 1, 1996, among the Company
and David G. Shaw, Marc G. Langlois and David G.
Shaw and Lynn R. Shaw, as Trustees of the David
and Lynn Shaw Charitable Remainder Unitrust, dated
February 12, 1996 and John E. Madocks and
Catalina.
Exhibit 2(b) Put and Call Option Agreement by and
among the Company, David G. Shaw, Marc G. Langlois
and John E. Madocks.
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Exhibit 2(c) Confidentiality and Non-Competition
Agreement by and among the Company, David G. Shaw
and Catalina.
Exhibit 2(d) Confidentiality and Non-Competition
Agreement by and among the Company, Marc G.
Langlois and Catalina.
Exhibit 2(e) Confidentiality and Non-Competition
Agreement by and among the Company, John E.
Madocks and Catalina.
Exhibit 2(f) Employment Agreement between
Catalina and David E. Shaw.
Exhibit 2(g) Employment Agreement between
Catalina and Marc G. Langlois.
Exhibit 2(h) Non-Qualified Stock Option Agreement
between the Company and David G. Shaw.
Exhibit 2(i) Non-Qualified Stock Option Agreement
between the Company and Marc G. Langlois.
Exhibit 2(j) Non-Qualified Stock Option Agreement
between the Company and John E. Madocks.
Exhibit 2(k) Special Option Agreement, among the
Company, Catalina, David G. Shaw, Marc G. Langlois
and John E. Madocks.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
PRESSTEK, INC.
By: /s/ Richard A. Williams
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Richard A. Williams
Chief Executive Officer
Date: February 28, 1996
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AGREEMENT AMONG
PRESSTEK, INC.
AND
DAVID G. SHAW, MARC G. LANGLOIS, DAVID G. SHAW AND LYNN R. SHAW,
AS TRUSTEES OF THE DAVID AND LYNN SHAW CHARITABLE REMAINDER
UNITRUST, DATED FEBRUARY 12, 1996, AND JOHN E. MADOCKS
AND
CATALINA COATINGS, INC.
Dated as of January 1, 1996
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TABLE OF CONTENTS
Page
1. Purchase and Sale....................................... 2
1.1. Agreement of Purchase and Sale................... 2
1.2. Consideration.................................... 3
1.3. The Closing...................................... 3
1.4. Effective Date. ................................. 6
2. Put and Call Agreement.................................. 7
2.1. The Agreement.................................... 7
3. Covenants of the Parties................................ 7
4. Representations and Warranties By Catalina and by the
Selling Shareholders as to Catalina..................... 8
4.1. Organization, Standing and Power................. 8
4.2. Capitalization................................... 9
4.3. Interests in Other Entities...................... 10
4.4. Financial Statements............................. 11
4.5. Tax Matters. ................................... 12
4.6. Absence of Undisclosed Liabilities............... 14
4.7. Properties....................................... 14
4.8. Accounts Receivable; Inventories................. 16
4.9. Absence of Changes............................... 17
4.10. Litigation....................................... 20
4.11. No Violation of Law.............................. 21
4.12. Intellectual Property............................ 21
4.13. Insurance........................................ 23
4.14. Banks; Letters of Credit; Powers of Attorney..... 24
4.15. Employee Arrangements............................ 24
4.16. ERISA............................................ 25
4.18. Certain Contracts................................ 29
4.19. Approvals........................................ 31
4.20. Customers and Suppliers.......................... 32
4.21. Backlog, Works in Progress....................... 32
4.22. Environmental Matters............................ 32
4.23. Vacation Time, Bonuses, Etc...................... 34
4.24. No Omissions..................................... 35
4.25. Indemnification of Brokerage..................... 35
5. Representations and Warranties as to the Selling
Shareholders............................................ 36
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5.1. Authority......................................... 36
5.2. Ownership of Shares............................... 36
5.3. Outstanding Rights to Acquire Shares.............. 36
5.4. Transfer of Title................................. 37
5.5. Binding Commitment................................ 37
6. Representations and Warranties as to the Buyer........... 39
6.1. Organization, Standing and Power.................. 39
6.2. Authority......................................... 39
6.3. Representations and Warranties on the Closing
Date.............................................. 39
6.4. Indemnification of Brokerage...................... 40
7. Survival of Representations and Warranties............... 40
8. Indemnification.......................................... 42
8.1. Indemnification by the Selling Shareholders....... 42
8.2. Indemnification by the Buyer...................... 43
8.3. Notice to the Indemnitor.......................... 44
8.4. Rights of Parties to Defend....................... 44
8.5. Settlement........................................ 45
8.6. Reimbursement..................................... 47
8.7. Tax Indemnification............................... 48
9. Miscellaneous Provisions................................. 48
9.1. Execution in Counterparts......................... 48
9.2. Notices........................................... 48
9.3. Amendment......................................... 50
9.4. Entire Agreement.................................. 50
9.5. Applicable Law.................................... 50
9.6. Headings.......................................... 50
9.7. Assignment........................................ 50
9.8. Binding Effect; Benefits.......................... 51
9.9. Waiver............................................ 51
9.10. Severability...................................... 51
9.11. Schedules......................................... 52
9.12. Further Actions................................... 52
Table of Exhibits
Table of Schedules
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TABLE OF EXHIBITS
Exhibits Section Reference
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A Opinion of Chandler, Tullar,
Udall & Redhair, Attorneys
for the Selling Shareholders 1.3(c)
B Put and Call Agreement 1.3.2(e)
C, D & E Non-Competition and
Confidentiality Agreements 1.3.1(f)
F & G Employment Agreements 1.3.1(h)
H, I & J Non-Qualified Stock Options 1.3.2(f)
K Special Option Agreement 1.3.2(g)
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TABLE OF SCHEDULES
Schedule Topic
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4.4 Unaudited balance sheet
as at 12/31/95
4.5(b) Adjustments
4.6 Material Liabilities
4.7 Properties & Assets
4.9 Absence of Changes
4.9(a) Tax Distributions to
Selling Shareholders
4.10 Pending Litigation
4.11 Violations
4.12 Intellectual Property
4.13 Insurance
4.14 Banks, Letters of Credit,
Powers of Attorney
4.15 Employee Arrangements
4.17 Certain Business Matters
4.18 Contracts
4.19 Approvals
4.20 List of Customers &
Suppliers
4.21 Backlog, Works in
Progress
4.23 Vacation Time
5.2 Ownership of Shares
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STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of the first day of January, 1996, by and among
Presstek, Inc., a Delaware corporation (the "Buyer") and David G. Shaw ("Shaw")
and Marc G. Langlois ("Langlois") and David G. Shaw and Lynn R. Shaw, as
Trustees of the David and Lynn Shaw Charitable Remainder Unitrust, dated
February 12, 1996 (the "Trustees") (collectively, the "Selling Shareholders"),
and John E. Madocks ("Madocks") and Catalina Coatings, Inc., an Arizona
corporation ("Catalina").
W I T N E S S E T H :
WHEREAS, the Selling Shareholders are the owners of an aggregate of
12,500 shares of Common Stock, $1.00 par value per share, constituting all of
the issued and outstanding shares of Common Stock (sometimes hereinafter
referred to as the "Common Stock") of Catalina; and
WHEREAS, Catalina is engaged in the business of (i) licensing and
sublicensing patent rights with respect to vapor deposition process to coat
moving webs of material at high rates and (ii) manufacturing and selling vacuum
deposition equipment for the application of acrylic deposits on moving webs of
materials; and
WHEREAS, the Buyer wishes initially to acquire 90% (the "Purchase
Shares") of the issued and outstanding shares of the Common Stock and to have
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the right thereafter to acquire the remaining 10% (the "Call Shares") of the
issued and outstanding shares of the Common Stock, and has agreed to purchase
the Purchase Shares from the Selling Shareholders, and the Selling Shareholders
have agreed to sell the Purchase Shares to the Buyer, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and conditions herein contained, the parties hereto hereby agree as
follows:
1. Purchase and Sale.
1.1. Agreement of Purchase and Sale. Subject to the terms and
conditions of this Agreement, the Selling Shareholders, simultaneous with the
execution hereof are selling and transferring to the Buyer, and the Buyer is
purchasing from the Selling Shareholders the 11,250 Purchase Shares,
constituting 90% of the issued and outstanding shares of the Common Stock, as
follows:
Selling Purchase
Shareholder Shares
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Shaw 7,068
Langlois 2,125
The Trustees 2,057
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1.2. Consideration. The aggregate consideration to be paid hereunder
is $8,400,000, of which $8,200,000 represents the purchase price for the
Purchase Shares (the "Purchase Price"), and $200,000 represents consideration
for the Non Competition and Confidentiality covenants of Shaw and Langlois to be
set forth in the Non-Competition and Confidentiality Agreements executed by Shaw
and Langlois of even date herewith. The aggregate consideration of $8,400,000 is
being paid to the Selling Shareholders by Federal Wire funds transferred
simultaneously with the execution of this Agreement pursuant to payment
instructions heretofore delivered to the Buyer.
1.3. The Closing.
1.3.1. Actions to be taken by the Selling Shareholders.
Simultaneously with the execution hereof or prior thereto, the Selling
Shareholders are delivering or have delivered to the Buyer or caused to occur,
the following:
(a) Stock certificates representing the Purchase Shares duly
endorsed for transfer or accompanied by properly executed stock powers (with
signatures in the form acceptable for transfer on the books of Catalina), free
and clear of any and all liens, security interests, pledges, claims, charges,
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and encumbrances of any nature whatsoever ("Liens"), and free and clear of any
provisions of any stockholders' agreement or voting trust;
(b) The resignations of such directors and officers of
Catalina as have been requested by the Buyer, after first causing the outgoing
directors to take such actions as the Buyer may have requested to appoint new
directors in their place as designated by the Buyer;
(c) The opinion of Chandler, Tullar, Udall & Redhair,
attorneys for the Selling Shareholders, dated the date hereof in the form of
Exhibit A attached hereto;
(d) The unaudited statements of earnings and of financial
position of Catalina as at and for the period ended December 31, 1995, attested
to as to accuracy and consistency by the Selling Shareholders;
(e) The Put and Call Agreement duly executed by the Shaw,
Langlois and Madocks, in the form of Exhibit B attached hereto;
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(f) Non Competition and Confidentiality Agreements in the
forms annexed hereto as Exhibits C, D and E, duly executed by Shaw, Langlois and
Madocks, respectively;
(g) the leases for the premises occupied by Catalina at 2555
N. Coyote Drive, Tucson, Arizona; and
(h) Employment Agreements in the forms annexed hereto as
Exhibits F and G duly executed by Shaw and Langlois respectively, each for a
term of four years and setting forth non-competition and confidentiality
covenants.
1.3.2. Actions to be taken by the Buyer.
Simultaneously with the execution hereof, the Buyer is:
(a) paying to the Selling Shareholders $8,200,000 representing
the Purchase Price, of which $5,151,267 shall be paid to Shaw, $1,548,733 shall
be paid to Langlois and $1,500,000 shall be paid to the Trustees;
(b) paying $100,000 to Langlois and $100,000 to Shaw in
consideration of their covenants not to compete.
(c) delivering to the Selling Shareholders the opinion of
Messrs. Tenzer Greenblatt LLP, dated the Closing Date;
(d) delivering to each of Shaw and Langlois their respective
Employment Agreements attached hereto as Exhibit F and G respectively, each for
a term of four years and setting forth non-competition and confidentiality
covenants;
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(e) delivering the Put and Call Agreement duly executed by the
Buyer in the form annexed hereto of Exhibit B;
(f) delivering duly executed and issued Non-Qualified Stock
Options issued to Messrs. Shaw, Langlois and Madocks for the purchase of an
aggregate of 100,000 shares of common stock of Buyer in the form of Exhibits H,
I and J attached hereto, par value $1.00 per share (with such option for 100,000
shares allocated among those three persons as they shall agree prior to the
Closing);
(g) delivering the duly executed and issued Special Option
Agreement in the form of Exhibit K attached hereto, giving Shaw, Langlois and
Madocks the right collectively to purchase from Catalina at the purchase price
for shares of Common Stock at the price such shares are made available by
private placement to employees of Catalina and other parties prior to an Initial
Public Offering ("IPO") that number of shares of Catalina that would equal 5% of
the issued and outstanding shares of Catalina (allocated among them in the
proportion they determine prior to the Closing Date), which right shall be
exercisable only upon the effectiveness of a registration statement under the
Securities Act of 1933, as amended, relating to an IPO of Common Stock prior to
the fourth anniversary of Closing Date.
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1.4. Effective Date. The effective date of the transactions provided
for in this Agreement is the opening of business on January 1, 1996 (the
"Effective Date"). Accordingly, the conduct of business from such date shall be
entirely for the account of Buyer, subject to the representations, warranties
and covenants of Selling Shareholders set forth herein.
2. Put and Call Agreement.
2.1. The Agreement. Shaw, Langlois and Madocks and the Buyer have
simultaneously with the execution and delivery of this Stock Purchase Agreement
executed and delivered to each other the "Put and Call Agreement" in the form of
Exhibit B hereto.
3. Covenants of the Parties.
3.1. The Selling Shareholders. At such time subsequent to the
Closing as the Buyer may request, the Selling Shareholders covenant and agree
that:
(a) Section 338(h)(10) Election. At the Buyer's request, the
Selling Shareholders will join with the Buyer in making an election under
Sections 338(g) and 338(h)(10) of the Internal Revenue Code of 1986, as amended
(the "Code") (and any corresponding elections under state or local law)
(collectively a "Section 338(h)(10) Election") with respect to the purchase and
sale of the Purchase Shares. Any such request must be delivered to the Selling
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Shareholders in writing not later than 120 days following the Closing Date. If
the Section 338(h)(10) Election is made, the parties by joint written agreement
will allocate the "aggregate deemed sales price" as computed under Section 338
of the Code and the Treasury Regulations promulgated thereunder (and/or similar
state, or local, tax law provision) among Catalina's assets for income tax
purposes based on an appraisal to be obtained by the Buyer at the expense of the
Buyer.
(b) the Selling Shareholders shall prepare and file all local,
state, foreign and/or federal taxes with respect to the tax periods of Catalina
ending on or prior the Closing Date. The Effective Date shall be the date of
termination of Catalina's Subchapter S tax election. The Selling Shareholders
shall have allocated and passed to themselves through all net income of Catalina
for such periods (including the income, gains and losses (if any) recognized by
virtue of the Section 338(h)(10) Election and deferred revenue on contracts of
approximately $2,126,000). Catalina shall be responsible for all local, state,
foreign and/or federal taxes reflected on returns for the tax period beginning
on the Effective Date of this Agreement.
4. Representations and Warranties By Catalina and by the Selling
Shareholders as to Catalina. Catalina and the Selling Shareholders hereby
jointly and severally represent and warrant to the Buyer as follows:
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4.1. Organization, Standing and Power. Catalina is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Arizona, with full corporate power and authority and all necessary
consents, licenses and permits, to own, lease, license and operate its
properties and assets and to carry on Catalina's business as currently conducted
by it; provided, however, that with respect to Intellectual Property, as defined
in Section 4.12 of this Agreement, the representations and warranties set forth
in Section 4.12 shall prevail over those set forth in this section 4.1. Neither
the character and location of any of Catalina's properties owned or leased by
Catalina, nor the conduct of its business, makes it necessary for it to qualify
to do business as a foreign corporation in any state. True and correct copies of
the Articles of Incorporation of Catalina and all amendments thereto, and of the
By-laws of Catalina, as amended to date, have been furnished to the Buyer and
are complete and correct. Catalina's minute books contain complete and accurate
records of all meetings and other corporate actions of Catalina's stockholders
and/or its Board of Directors.
4.2. Capitalization. The authorized capital stock of Catalina
consists of 1,000,000 shares of Common Stock, $1.00 par value per share, of
which 12,500 shares are issued and outstanding at the date hereof, and 987,500
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shares are authorized and unissued at the date hereof. All of the issued and
outstanding shares of Common Stock have been duly and validly authorized and
issued and are fully paid and nonassessable, have not been issued and are not
owned or held in violation of any preemptive or similar right of any person and
are owned of record and beneficially solely by the Selling Shareholders, free
and clear of all Liens, stockholders agreements or voting trusts. There is no
commitment, plan, or arrangement to issue, and no outstanding option, warrant,
or other right calling for the issuance of, any share of capital stock of
Catalina or any security or other instrument convertible into, exercisable to
purchase, or exchangeable for, capital stock of Catalina. There is no personal
liability, and there are no preemptive or similar rights, attached to Catalina's
Common Stock.
4.3. Interests in Other Entities. Except as described on Schedule
4.3 hereof, Catalina does not (A) own, directly or indirectly, of record or
beneficially, any shares of voting stock or other equity securities of any other
corporation, (B) have any ownership interest, direct or indirect, of record or
beneficially, in any unincorporated entity, or (C) have any obligation, direct
or indirect, present or contingent, (1) to purchase or subscribe for any
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interest in, advance or loan monies to, or in any way make investments in, any
person or entity, or (2) to share any profits or capital investments or both.
4.4. Financial Statements. Set forth as Schedule 4.4 hereof are true
and correct copies of Catalina's unaudited balance sheet as at December 31, 1995
and the related unaudited statement of operations for the period ended December
31, 1995 (the "Unaudited 1995 Financials"). The Unaudited 1995 Financials were
prepared in accordance with generally accepted accounting principles
consistently applied, are in accordance with the books and records of Catalina,
and are correct and complete in all respects, and fairly present the financial
position and results of operations and changes in financial position of Catalina
as at the period ended December 31, 1995, including (a) royalties and all
revenues received from the exploitation of any of its assets (including without
limitation, patent licenses) and provisions amounting to one percent (1%) of
machinery sales prices for any liabilities arising by reason of warranties given
on machinery manufactured by Catalina or product liability exposure, with
respect to such machinery. Catalina has accounted for and paid royalties to
patent licensors at the date of the 1995 Financials in accordance with the terms
of the agreements of Catalina with such persons; and Catalina has accrued all
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unpaid amounts to become due in respect of all sales activity to the date of the
1995 Financials.
4.5. Tax Matters.
(a) Catalina has, in accordance with all applicable laws,
rules and regulations, filed with the appropriate governmental agencies and has
delivered or made available to the Buyer complete and accurate copies of all
federal, state, local and foreign tax returns, statements, reports, estimates,
declarations, elections, and forms (hereinafter collectively called "Tax
Returns") required to be filed by it or obtained the necessary extensions
(copies of all of which it has delivered or made or will make available prior to
the Closing to the Buyer), and has paid in full or made adequate provision for
the payment of all taxes, interest, penalties, assessments and deficiencies
shown to be due or claimed to be due on the Tax Returns. The provisions for
income and other taxes and any interest, penalties, assessments thereon and
deficiencies thereof reflected on the Balance Sheet are adequate for all accrued
and unpaid taxes of Catalina as of December 31, 1995, whether (A) incurred in
respect of or measured by income of Catalina for any periods prior to the close
of business on that date, or (B) arising out of transactions entered into, or
any state of facts existing, on or prior to that date. The provision for income
and other taxes reflected on the books of account of Catalina is adequate for
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all income and other taxes of Catalina which accrued after December 31, 1995.
Catalina has not executed or filed with any taxing authority any agreement
extending the period for the assessment or collection of any income or other
taxes, and it is not a party to any pending or, to the best of the Selling
Shareholders' or Catalina's knowledge, threatened, action or proceeding by any
governmental authority for the assessment or collection of any income or other
taxes. The tax returns of Catalina have never been examined by the Internal
Revenue Service or any other taxing authority. Catalina has never made an
election under Section 341(f) of the Code.
(b) Except as set forth on Schedule 4.5(b), Catalina (i) has
not agreed to or been required to make any adjustment pursuant to Section 481(a)
of the Code, (ii) has no knowledge that the Internal Revenue Service or any
other taxing authority has proposed any such adjustment or change in accounting
method, and (iii) has no application pending with a Governmental Authority
requesting permission for any change in accounting method.
(c) Valid and effective state and federal elections to be
treated as an "S" corporation were duly made and are in effect for all taxable
years from 1991 through the Closing Date.
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4.6. Absence of Undisclosed Liabilities. Except as set forth on
Schedule 4.6 hereof, Catalina has no material liabilities or obligations of any
nature whatsoever, whether accrued, absolute, contingent or otherwise, except
(i) in the case of liabilities, obligations and contingencies of a type
customarily reflected on a corporate balance sheet prepared in accordance with
generally accepted accounting principles, as set forth on the Unaudited 1995
Balance Sheet or (ii) in the case of other types of liabilities and obligations,
as described in any of the Schedules delivered pursuant hereto or omitted from
such Schedules in accordance with the terms of this Agreement, or (iii) normally
recurring liabilities incurred, consistent with past practice, in the ordinary
course of business since December 31, 1995 (in the case of liabilities,
obligations and contingencies of the type referred to in clause (i) above). To
the extent that the foregoing representations apply to product liability claims
in the nature of personal injury or wrongful death, then such representation is
limited to Selling Shareholders' and Catalina's best knowledge.
4.7. Properties. Catalina is the owner of and has good and
marketable title to all properties and assets reflected as owned on the 1995
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Balance Sheet free and clear of all Liens, except as described on Schedule 4.7
hereof. To the best knowledge of the Selling Shareholders and/or Catalina, (i)
all plants, structures, machinery and equipment which are material to the
business, operation or condition (financial or otherwise) of Catalina are in
good and usable operating condition and repair, and are suitable for the
purposes for which they are used; and none of such plants, structures, machinery
or equipment are in need of maintenance or repairs except for ordinary, routine
maintenance and repairs which are not substantial in nature or cost, and (ii)
all properties and assets (including Intellectual Property as defined in Section
4.12 herein) owned by Catalina or leased or licensed by Catalina from a third
party constitute all such properties and assets which are necessary to the
business of Catalina as currently conducted. Schedule 4.7 also contains an
accurate and complete list setting forth all (A) real property leases executed
by or binding on Catalina as lessee, sub-lessee, sub-lessor, tenant or assignee
(the "Leased Premises"), and (B) machinery and equipment, motor vehicles and
other significant personal property and assets owned by Catalina or leased or
licensed by or to Catalina, or which is otherwise used or available for use in
connection with the business of Catalina; correct and complete copies of any
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lease and licenses and the terms of any oral agreements are described on
Schedule 4.7, together with all amendments thereto. Catalina enjoys peaceful and
undisturbed possession as to its real properties and under all leases and
licenses under which it is operating.
All water, utility and other charges, sewer rent and assessments
affecting its real properties, the Leased Premises or any part thereof, and all
taxes imposed against or affecting the Leased Premises (to the extent payable by
Catalina) or any part thereof, have been paid in full, accrued or reflected on
the 1995 Balance Sheet. Neither Catalina nor either of the Selling Shareholders
has received notice of any assessments, nor has knowledge of any pending
assessments, affecting its real properties and the Leased Premises (to the
extent payable by Catalina). To the best knowledge of the Selling Shareholders
and Catalina, Catalina's use of its real properties and the Leased Premises
conforms in all material respects with all covenants and restrictions and all
applicable building, zoning, land use and other laws.
4.8. Accounts Receivable; Inventories. All accounts and notes
receivable that (a) are reflected on the 1995 Balance Sheet, or (b) that arose
since the date thereof, are good and collectible and arose in the ordinary
course of business for goods sold and invoiced or services performed, and are
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owned by Catalina free and clear of all Liens, in each case, at the aggregate
recorded amounts thereof, less the amount of the allowance for doubtful accounts
as reflected on the 1995 Balance Sheet and to the best knowledge of the Selling
Shareholders and Catalina are without right of recourse, defense, deduction,
counterclaim, offset, or set off on the part of the obligor. To the best
knowledge of the Selling Shareholders and Catalina, there is no matter which
would affect the collectability of any receivables to an extent greater than
that reserved against in a manner consistent with Catalina's past practices. The
inventories reflected on the 1995 Balance Sheet and thereafter added consist of
items acquired in the ordinary course of business, in customary quantities and
at prevailing prices, and are of a quality and quantity usable or saleable in
the ordinary course of business as conducted by Catalina, except for obsolete
materials, slow-moving items, materials of below standard quality and not
readily marketable items, all of which have been written down to net realizable
value or adequately reserved against on the books and records of Catalina. All
inventories are stated at the lower of cost or market in accordance with
generally accepted accounting principles.
4.9. Absence of Changes. Except as set forth on Schedule 4.9 hereof,
since December 31, 1995, there has not been (i) any material adverse
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change in the condition (financial or otherwise), assets, liabilities, business,
prospects, or results of operations of Catalina (including, without limitation,
any such adverse change resulting from damage, destruction or other casualty
loss, whether or not covered by insurance), (ii) any waiver by Catalina of any
right, or cancellation of any debt or claim, of substantial value, (iii) any
declaration, setting aside or payment of any dividend or other distribution or
payment in respect of the capital stock of Catalina (except distributions to the
Selling Shareholders with respect to payment of income tax obligations as set
forth on Schedule 4.9(a) hereof), or any direct or indirect redemption,
purchase, or other acquisition of any capital stock of Catalina, (iv) any change
in any of the arrangements that are referred to in section 4.15 hereof or any
transactions of the type that are referred to in clause (F) of section 4.17
hereof, or (v) any change in the accounting principles or methods that are
utilized by Catalina. In addition, except as set forth on Schedule 4.9 hereto
(which describes, inter alia, the stock option of Messrs. Langlois and Madocks),
since December 31, 1995 Catalina has not:
(a) issued any stock, bonds or other corporate securities;
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(b) discharged or satisfied any Lien, or incurred or paid any
liabilities, absolute or contingent, other than in the ordinary course of
business;
(c) mortgaged or pledged or subjected to Lien, any of its
material assets, tangible or intangible;
(d) sold, transferred or disposed of any of its assets except
assets used or consumed in the ordinary course of business and obsolete
equipment and equipment which has been replaced in the ordinary course of
business;
(e) suffered any pre-tax loss from operations;
(f) increased compensation payable to or to become payable by
Catalina to any of its employees;
(g) operated its business in any way other than in the
ordinary course; and
(h) paid or incurred any tax, other liability, or expense
resulting from the preparation of, or the transactions contemplated by, this
Agreement, it being understood that Selling Shareholders shall have paid or will
pay all such taxes (including stock transfer taxes resulting from this
Agreement, if any, or the transactions contemplated hereby, and income taxes on
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deferred revenue on contracts of approximately $2,126,000), liabilities, and
expenses.
There is no fact known to Catalina or Selling Shareholders which
materially adversely affects or in the future (as far as Catalina or the Selling
Shareholders can foresee) may materially adversely affect the financial
condition, results of operations, business, properties, assets, liabilities, or
future business prospects of Catalina.
4.10. Litigation. Other than as set forth in Schedule 4.10 hereof,
there are no suits or actions, or administrative, arbitration or other
proceedings (formal or informal) or governmental investigations, pending or, to
the best knowledge of the Selling Shareholders, threatened against or relating
to Catalina, (or any basis therefor known to Catalina or the Selling
Shareholders) with respect to Catalina, the business of Catalina or any of its
properties or assets, including, but not limited to, any suits, actions,
proceedings or investigations pending or, to the knowledge of Catalina or the
Selling Shareholders, threatened, arising out of, caused by, related to or
resulting or occurring from or in connection with any claim of violation of the
rights of privacy, or libel, or infringement of any other right of a third party
or parties including any claim of patent infringement. There are no judgments,
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orders, stipulations, injunctions, decrees or awards in effect that relate to
Catalina, the business of Catalina or any of its properties or assets, the
effect of which is (A) to limit, restrict, regulate, enjoin or prohibit any
business practice in any area, or the acquisition of any properties, assets or
businesses, or (B) otherwise materially adverse to the business of Catalina or
any of its properties or assets. Catalina is not affected by any present or
threatened strike or other labor disturbance nor to the knowledge of Catalina or
the Selling Shareholders is any union attempting to represent any employee of
Catalina as collective bargaining agent.
4.11. No Violation of Law. Catalina is not in violation of or in
default with respect to any law, rule, regulation, ordinance, statute, order,
decree or any other requirement of any court or governmental or administrative
body or agency ("Laws") directly applicable to Catalina, the business of
Catalina or any of its properties or assets, including, but not limited to,
those relating to: occupational safety and health; business practices and
operations; labor practices; or employee benefits. To the best knowledge of the
Selling Shareholders, Catalina is not engaging in any activity or omitting to
take any action (and has not taken or omitted to take any action) the result of
which is that Catalina, the business of Catalina and/or any of its properties or
assets have been or may be materially and adversely affected. Except as set
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forth in Schedule 4.11 hereof, Catalina has not received any claim or notice of
any violation of any Laws relating to the properties, premises, business or
employees of Catalina.
4.12. Intellectual Property. Schedule 4.12 hereof contains a
complete, true and correct list of all patents, trademarks and trade names,
brandmarks and brand names, servicemarks, assumed names and copyrights owned in
whole or in part or used by Catalina, and any licenses or other agreements
relating thereto (the "Intellectual Property"). Schedule 4.12 includes a brief
description of all such Intellectual Property that has been duly registered
with, or for which a patent, copyright, trademark or servicemark has been issued
by, or for which an application or registration has been filed with any federal,
state, local or foreign governmental agency, including, without limitation, the
United States Patent and Trademark Office and the United States Register of
Copyrights. Except as set forth in Schedule 4.12 or as hereinafter provided, (A)
subject to the specific provisions of such clauses (B), (C) and (D) below,
Catalina owns or has the right to use all of the Intellectual Property; (B) no
proceedings have been instituted, are pending or are threatened, that challenge
the rights of Catalina in respect of the Intellectual Property or the validity
thereof and, to the best of the knowledge of the Selling Shareholders, there is
no valid basis for any such proceedings; (C) to the best of the Selling
Shareholders' and Catalina's knowledge, none of the Intellectual Property
violates any laws, statutes, ordinances or regulations, or has at any time
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infringed upon or violated any rights of others, including, but not limited to,
any patent infringement, or is being infringed by others, including, but not
limited to, any patent infringement; (D) the Intellectual Property is not
subject to any outstanding order, decree, judgment, stipulation, charge, liens
or security interests, claims, restrictions or licenses (other than those set
forth on Schedule 4.12); (E) to the Selling Shareholders' and Catalina's best
knowledge, no Intellectual Property used by Catalina infringes any patent,
copyright, trademark, servicemark or trade name of others in the United States
of America or in any other country in which such patent, copyright, trademark,
servicemark or trade name is used by Catalina; and, (F) to the Selling
Shareholders' and Catalina's best knowledge, no claims have been made that any
such infringements have occurred or are occurring.
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4.13. Insurance. Schedule 4.13 hereof contains a complete, true and
correct list and summary description (specifying the insurer, the amount of
coverage, the type of insurance, the risks insured, the expiration date, the
policy number, the premium and any agent or broker) of all policies of insurance
relating to any of the properties, assets or the business of Catalina
(including, but not limited to product liability insurance) in which Catalina is
an insured party, beneficiary or loss payable payee. Such policies are in full
force and effect, all premiums due and payable with respect thereto have been
paid, and no notice of cancellation or termination or nonrenewal has been
received by Catalina that may result in a cancellation or nonrenewal with
respect to, or disallowance of any claim under, any such policy or binder and no
written notice has been received by Catalina of any increase or potential
increase of the premiums payable.
4.14. Banks; Letters of Credit; Powers of Attorney. Schedule 4.14
hereof contains a complete, true and correct list showing (i) the names of each
bank in which Catalina has an account or safe deposit box and the names of all
persons authorized to draw thereon or who have access thereto, and the name of
each authorized signatory thereto, (ii) all outstanding letters of credit issued
by financial institutions for the account of Catalina (setting forth, in each
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case, the financial institution issuing such letter of credit, the maximum
amount available under such letter, the terms (including the expiration date) of
such letter of credit and the party or parties in whose favor such letter of
credit was issued), and (iii) the names of all persons, if any, holding powers
of attorney from Catalina. Catalina has heretofore delivered or made available
to the Buyer true, correct and complete copies of each letter of credit and each
power of attorney described on Schedule 4.14.
4.15. Employee Arrangements. Schedule 4.15 hereof contains a
complete, true and correct list and summary description of all (i) union,
collective bargaining, employment, management, termination and consulting
agreements to which Catalina is a party or otherwise bound (if any), and (ii)
compensation plans and arrangements; bonus and incentive plans and arrangements;
deferred compensation plans and arrangements; pension and retirement plans and
arrangements; profit sharing and thrift plans and arrangements; stock purchase
and stock option plans and arrangements; hospitalization and other life, health
or disability insurance or reimbursement programs; holiday, sick leave,
severance, vacation, tuition reimbursement, personal loan and product purchase
discount policies and arrangements; and other plans or arrangements providing
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for benefits for employees of Catalina. Catalina has heretofore delivered or
made available copies of all contracts and plans to the Buyer. Such Schedule
also lists the names and compensation of all employees of Catalina for the last
fiscal year (including bonuses and other incentive compensation), and additional
employees who are expected to receive compensation in respect of the present
year.
4.16. ERISA.
4.16.1. Plans. Schedule 4.15 referred to in subparagraph 4.15 hereof
lists each "employee pension benefit plan" (collectively called "Catalina
Pension Plans" and severally called "Catalina Pension Plan"), as such term is
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and each "employee welfare benefit plan" (collectively
called "Catalina Welfare Plans" and severally called "Catalina Welfare Plan") as
such term is defined in Section 3(1) of ERISA, which are maintained by Catalina
or to which it contributes or is obligated or required to contribute. The
Catalina Pension Plans and Catalina Welfare Plans are hereinafter sometimes
collectively referred to as the "Plans" and severally referred to as a "Plan."
4.16.2. Qualification. Each Catalina Pension Plan and the trust (if
any) forming a part thereof have been determined by the IRS to be qualified
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under Section 401(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), and is exempt from taxation under Section 501(a) of the Code, and
nothing has occurred since the date of such determination which would adversely
affect such qualification.
4.16.3. Plan Documents. Catalina has heretofore delivered to the
Buyer true, complete and correct copies of (i) the Plans, and all related trust
agreements, (ii) all written interpretations and summary plan descriptions
relating thereof (iii) the annual report (Form 550 Series) and accompanying
schedules which were prepared in connection with each Plan, (iii) all IRS
determination letters relating to the Plans, and (iv) the most recent actuarial
evaluation report, if any, which were prepared in connection with any of the
Plans.
4.16.4. No Prohibited Transactions. Neither Catalina nor any of the
Plans, nor any trust created thereunder, nor any trustee or administrator
thereof, has engaged in a transaction which would subject Catalina or any of the
Plans to the tax on prohibited transactions imposed by Section 4975 of the Code
or to a civil penalty assessed pursuant to Section 502(i) of ERISA.
4.16.5. No Accumulated Funding Deficiency. None of the Catalina
Pension Plans has incurred any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or not
waived.
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4.16.6. Termination, etc. Catalina has not incurred, and is not
expected to incur, directly or indirectly, any liability to the Pension Benefit
Guaranty Corporation (the "PBGC") with respect to any Catalina Pension Plan. The
PBGC has not instituted proceedings to terminate any Catalina Pension Plan, nor
has it notified Catalina, either formally or informally, of its intention to
institute any such proceedings.
4.16.7. Reportable Events. There have not been, with respect to any
of the Plans, any "reportable events," as such term is defined in Section
4043(b) of ERISA.
4.16.8. Contributions; Benefits. Catalina has paid in full all
amounts which were required to have been paid by it on or prior the date hereof
as contributions to any of the Catalina Pension Plans. The current value of all
accrued benefits under each of the Catalina Pension Plans did not, as of the
latest valuation date thereof, exceed the then current value of the assets of
such Catalina Pension Plan allocable to such accrued benefits, based upon the
actuarial assumptions then being utilized with respect thereof.
4.16.9. Claims. There is not pending, and to the best of the
knowledge of the Selling Shareholders there is not threatened, any claims
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against any of the Plans or any fiduciary thereof (other than claims for
benefits made in the ordinary course.)
4.17. Certain Business Matters. Except as is set forth in Schedule
4.17 hereof, (A) Catalina is not a party to or bound by any distributorship,
dealership, sales agency, franchise or similar agreement which relates to the
sale or distribution of any of the products and services of the business of
Catalina, (B) Catalina has no sole-source supplier of significant goods or
services (other than utilities) with respect to which practical alternative
sources are not available on comparable terms and conditions, (C) there are no
pending, or to the best of the knowledge of Catalina and the Selling
Shareholders threatened, labor negotiations, work stoppages or work slowdowns
involving or affecting the business of Catalina, and, to the best of the
knowledge of Catalina and the Selling Shareholders, no union representation
questions exist, and there are no organizing activities, in respect of any of
the employees of Catalina, and no unfair labor practice complaints have been
filed against Catalina with the National Labor Relations Board, and Catalina has
not received any written notice or communication reflecting an intention or a
threat to file any such complaint, (D) complete and correct copies of the
product and service warranties given by Catalina or by which it is bound have
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heretofore been delivered by Catalina to the Buyer; (E) Catalina is not a party
to or bound by any agreement that limits its freedom to compete in any line of
business or with any person, or which is otherwise materially burdensome to it,
and (F) Catalina is not a party to or bound by any agreement in which any
officer, or director of Catalina (or any affiliate of any such person) or either
of the Selling Shareholders, has, or had when made, a direct or indirect
material interest.
4.18. Certain Contracts. Schedule 4.18 hereof contains a complete,
true and correct list of all contracts, commitments, obligations and
understandings that are not set forth in any other Schedule delivered hereunder
and to which Catalina is a party or otherwise bound, except for each of those
that (A) was made in the ordinary course of business, and (B) either (1) is
terminable by Catalina (and will be terminable by the Buyer) without liability,
expense or other obligation on 30 days' notice or less, or (2) may be
anticipated to involve aggregate payments to or by Catalina of $10,000 (or the
equivalent) or less calculated over the full term thereof, and (C) is not
otherwise material to the business of Catalina or any of the properties or
assets of Catalina. Except as expressly stated on the Schedule on which they are
set forth, (A) all agreements between Catalina and any person (or other
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contributor, creator, owner or user), that relate to any Intellectual Property
are in full force and effect in accordance with their terms; Catalina has
performed all of its obligations thereunder that are required to be performed
for all activity up to the date hereof and is not in breach of or in default
with respect to any material terms of such agreements; (B) each contract,
commitment, obligation and understanding set forth on any of the Schedules
delivered pursuant to this Agreement is in full force and effect in accordance
with its terms, no person or entity that is a party thereto or otherwise bound
thereby is in default of any material term thereunder, and, no event,
occurrence, condition or act exists that does (or that with or without the
giving of notice or the lapse of time or both would) give rise to a default or
right of cancellation, acceleration or loss of contractual benefits thereunder;
and (C) there are no outstanding disputes evidenced by a written communication
thereunder and, to the best knowledge of Catalina and the Selling Shareholders,
there have been no threatened cancellations thereof. Catalina has not received
any written notice of a claim by, and the sale of the Purchase Shares and the
Option Shares to the Buyer does not and will not give rise to any right on the
part of, any third party to renegotiate or otherwise adjust the price under any
contract or commitment to which Catalina is a party. Neither the execution and
delivery of this Agreement by the Selling Shareholders and Catalina, nor the
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sale of the Purchase Shares or the Option Shares to the Buyer (a) requires the
solicitation or receipt of the consent of any third party, pursuant to the terms
of any contract or commitment between Catalina and any such third party, (b)
will, in and of itself, constitute or permit the amendment of any such existing
contract or commitment, or (c) will allow any such third party to terminate any
such contract or commitment pursuant to the terms thereof.
4.19. Approvals. Set forth on Schedule 4.19, which Catalina has
heretofore delivered to the Buyer, is a complete, true and correct list of all
governmental and administrative consents, permits, appointments, approvals,
licenses, certificates and franchises which are necessary for the operation of
the business of Catalina, all of which have been obtained by Catalina and are in
full force and effect.
4.20. Customers and Suppliers. Set forth on Schedule 4.20, which
Catalina has heretofore delivered to the Buyer, is a complete, true and correct
list setting forth, with respect to the period beginning January 1, 1994,
through the most recent practicable date: (A) the customers of the business of
Catalina and the amount for which each such customer was invoiced, and (B) the
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principal suppliers and subcontractors of the business of Catalina. None of such
suppliers or subcontractors is a "sole" source and there is no supplier or
subcontractor the loss of which would have material adverse effect on the
business of Catalina.
4.21. Backlog, Works in Progress. Schedule 4.21 hereto sets forth
unshipped orders and the dollar amount of such orders as at the date hereof,
broken down by product line.
4.22. Environmental Matters.
(a) To the best of the Selling Shareholders and Catalina's
knowledge, Catalina has complied in all respects with all Environmental Laws (as
hereinafter defined). Catalina has obtained all permits, licenses, certificates
and other authorizations which are required with respect to its operation under
any Environmental Laws.
(b) To the best of the Selling Shareholders and Catalina's
knowledge, there is no pending or threatened civil, criminal or administrative
action, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter that affects or applies to Catalina, its business or
assets, the services it has provided relating in any way to any Environmental
Laws or any regulation, code, plan, order, decree, judgment, injunction, notice
or demand letter issued, entered, promulgated or approved thereunder.
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(c) To the best of the Selling Shareholders and Catalina's
knowledge, there has been no emission, spill, release or discharge by Catalina,
from any of its assets into or upon (i) the air, (ii) soils or improvements,
(iii) surface water or ground water, or (iv) the sewer, septic system or waste
treatment, storage or disposal system servicing such assets of any toxic or
hazardous substances or wastes used, stored, generated, treated or disposed at
or from any of such assets.
(d) As used herein, "Environmental Laws" mean all federal,
state, local and foreign environmental, health and safety laws, codes and
ordinances and all rules and regulations promulgated thereunder, including, but
not limited to, those applying to hazardous substances. As used herein, the term
"hazardous substances or wastes" includes, without limitation, (i) all
substances which are designated pursuant to Section 311(b)(2)(A) of the Federal
Water Pollution Control Act ("FWPCA"), 33 U.S.C. ss. 1251 et seq.; (ii) any
element, compound, mixture, solution, or substance which is designated pursuant
to Section 102 of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. ss. 9601 et seq.; (iii) any hazardous waste
having the characteristics which are identified under or listed pursuant to
Section 3001 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.
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ss. 6901 et seq.; (iv) any toxic pollutant listed under Section 307(a) of the
FWPCA; (v) any hazardous air pollutant which is listed under Section 112 of the
Clean Air Act, 42 U.S.C. ss. 7401 et seq.; (vi) any imminently hazardous
chemical substance or mixture with respect to which action has been taken
pursuant to Section 7 of the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et
seq.; and (vii) waste oil.
4.23. Vacation Time, Bonuses, Etc. Except as set forth on the
December 31, 1995, Balance Sheet or on Schedule 4.23, there are no accrued
vacations, sick pay, bonuses, profit sharing, incentives, commissions or other
compensation of any kind with respect to work done prior to the date hereof due
to or expected by present or former employees of Catalina. All brochures,
agreements and other documents setting forth personnel policies relating to the
employees of Catalina, including, without limitation, information concerning
compensation, severance, termination and other employee perquisites and
benefits, have been furnished to the Buyer.
4.24. No Omissions. No representation or warranty by Catalina or the
Selling Shareholders contained in this Agreement, and no statement contained in
any Schedule, certificate or other instrument furnished to the Buyer under or in
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connection with this Agreement, contains any untrue statement of any material
fact or omits to state any material fact necessary in order to make the
statements contained herein or therein not misleading.
4.25. Indemnification of Brokerage. The Selling Shareholders jointly
and severally represent and warrant to the Buyer that no broker, finder, agent
or similar intermediary has acted on behalf of Catalina or any Selling
Shareholder in connection with this Agreement or the contemplated transactions
and that there are no brokerage commissions, finders' fees or similar fees or
commissions payable in connection therewith based on any agreement, arrangement
or understanding with the Buyer or any action taken by the Selling Shareholders.
5. Representations and Warranties as to the Selling Shareholders. The
Selling Shareholders hereby each represent and warrant to, and covenant with,
the Buyer as follows:
5.1. Authority. The execution and delivery by each Selling
Shareholder of this Agreement and of all of the agreements to be executed and
delivered by him pursuant hereto, the performance by him of its obligations
hereunder and thereunder, and the consummation of the transactions contemplated
hereby and thereby are valid and enforceable acts by each Selling Shareholder.
5.2. Ownership of Shares. Each Selling Shareholder is the sole
record and beneficial owner of the issued and outstanding shares of capital
stock of Catalina set forth on Schedule 5.2 hereof and has good and marketable
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title to all of the shares of Common Stock on the date hereof, free and clear of
any and all Liens, voting trusts, shareholder agreements, or rights of any kind
whatsoever granting to any person or entity any interest in or the right to
purchase or otherwise acquire any of the shares of Common Stock from the Selling
Shareholder at any time or upon the happening of any stated event.
5.3. Outstanding Rights to Acquire Shares. There are no outstanding
options, warrants, rights, calls, commitments, conversion rights, puts, plans,
trusts (voting or otherwise) or other agreements of any character to which
either Selling Shareholder is a party or otherwise bound which provide for the
acquisition or disposition of any shares of capital stock of Catalina.
5.4. Transfer of Title. Upon the delivery by each Selling
Shareholder to the Buyer of the certificates representing his respective shares
of Common Stock, the Buyer will have good and marketable title to the shares of
Common Stock, free and clear of any and all Liens and free and clear of any
provisions of any stockholder's agreement or voting trusts.
5.5. Binding Commitment. Each Selling Shareholder has duly and
validly executed this Agreement and each other agreement and instrument to be
executed and delivered by him pursuant hereto. This Agreement and all such other
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agreements and instruments are the valid and binding obligations of each Selling
Shareholder enforceable in accordance with their respective terms. Neither the
execution nor the delivery by the Selling Shareholders of this Agreement or of
any agreement or instrument executed and delivered by them pursuant hereto, nor
the consummation of the transactions contemplated hereby or thereby, nor the
performance by them of any of their obligations hereunder or thereunder, will
(nor with or without the giving of notice or the lapse of time or both would)
(A) violate, conflict with or result in a breach of any provision of the
Articles of Incorporation or By-laws of Catalina or any amendments thereto or
restatements thereof, or (B) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default, or any right of
termination, cancellation or acceleration, or otherwise result in a loss of
contractual benefits to Catalina under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which Catalina is a party or by which any of its
properties or assets or the shares of Common Stock may be bound, or (C) violate
any order, writ, injunction, decree, law, statute, rule or regulation applicable
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to the Selling Shareholders or Catalina or any of their respective properties or
assets, or (D) result in the creation or imposition of any Lien upon any of the
shares of Common Stock, or upon any of the properties or assets of Catalina, or
(E) interfere with or otherwise adversely affect the ability of the Buyer to
carry on the business of Catalina after the Closing Date on substantially the
same basis as it is now conducted. No governmental authorization, approval,
order, license, permit, franchise or consent, and no registration, declaration
or filing with any court, governmental department, commission, authority, board,
bureau, agency or other instrumentality, is required in connection with the
Selling Shareholders' execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby.
6. Representations and Warranties as to the Buyer. The Buyer hereby
represents and warrants to Catalina and to the Selling Shareholders as follows:
6.1. Organization, Standing and Power. The Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
6.2. Authority. The execution and delivery by the Buyer of this
Agreement and of each agreement and instrument executed and delivered by it
pursuant hereto, the compliance by the Buyer with the provisions hereof and
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thereof, and the consummation of the transactions contemplated hereby and
thereby, have been duly and validly authorized by all necessary corporate action
on the part of the Buyer. This Agreement and each other agreement and instrument
executed and delivered by the Buyer pursuant hereto are the valid and binding
obligations of the Buyer enforceable in accordance with their respective terms.
6.3. Representations and Warranties on the Closing Date. The
representations and warranties contained in this Article 6 shall be true,
correct and complete on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and as of
the Closing Date, except with respect to any changes therein contemplated by
this Agreement.
6.4. Indemnification of Brokerage. The Buyer represents and warrants
to the Selling Shareholders and to Catalina that no broker, finder, agent or
similar intermediary has acted on its behalf in connection with this Agreement
or the contemplated transactions, and that there are no brokerage commissions,
finders' fees or similar fees or commissions payable in connection therewith
based on any agreement, arrangement or understanding with the Buyer or any
action taken by the Selling Shareholders or Catalina.
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<PAGE>
7. Survival of Representations and Warranties. Each of the parties
hereto hereby agrees that all representations and warranties made by or on
behalf of it in this Agreement or in any document or instrument delivered
pursuant hereto shall survive the consummation of the transactions contemplated
hereby until the close of business on the third (3rd) anniversary of the date
hereof (the "Survival Period"); provided, however, that (a) the representations
and warranties of the Selling Shareholders with respect to tax matters contained
in Section 4.5 hereof shall survive until the relevant statute of limitations
with respect to each such item has run (and in the event that any audit or other
proceeding has been initiated prior to the end of the relevant limitation
period, the representations and warranties made by the Selling Shareholders with
respect to such item shall survive until the conclusion of such audit or other
proceeding); (b) the representations and warranties of the Selling Shareholders
contained in Section 4.22 with respect to environmental matters shall survive
until the relevant statute of limitations for such matters have run (and in the
event that any proceeding with respect to any such environmental matter has been
initiated prior to the end of the relevant limitation period, the
representations and warranties made by the Selling Shareholders with respect to
such matter shall survive until the conclusion of such proceeding); and (c) the
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<PAGE>
representations and warranties contained in Sections 4.1, 4.2, 5.2, 5.3 and 5.4
(all of which pertain to the organization, capitalization and ownership of
Catalina and title to shares of Common Stock and the ability of the Selling
Shareholders to transfer the shares of Common Stock to the Buyer) shall survive
until the relevant statute of limitations have run for such matters (and in the
event that any proceeding with respect to any such matter has been initiated
prior to the end of the relevant limitation period, the representations and
warranties made by the Selling Shareholders with respect to such matter shall
survive until the conclusion of such proceeding).
8. Indemnification.
8.1. Indemnification by the Selling Shareholders. Subject to the
limitation periods set forth in Article 7 hereof and the limitations on
liability and the other rights of the Selling Shareholders set forth in this
Article 8, each Selling Shareholder and Catalina jointly and severally hereby
indemnify the Buyer and hold it harmless at all times from and after the date
hereof against and in respect of:
(a) Any and all damages, losses, liabilities, taxes and
deficiencies and penalties and interest thereon and costs and expenses to the
Buyer and/or to Catalina ("Losses") up to but not in excess of the Purchase
Price resulting from any misrepresentation, breach of warranty or nonfulfillment
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<PAGE>
of any covenant or agreement on the part of the Selling Shareholder or Catalina
under this Agreement;
(b) Any claims or litigation relating to Catalina now pending
or threatened or which may hereafter be brought against Buyer and/or Catalina
based upon events occurring prior to the date hereof and not attributable to the
acts of the Buyer, including but not limited to any claims arising by reason of
any non-payment of royalties determined to be due in respect of sales activity
prior to the date hereof upon audit of the relevant books and records of
Catalina by any royalty payee;
(c) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, losses, liabilities and reasonable legal and
other expenses incident to any of the foregoing.
8.2. Indemnification by the Buyer. Subject to the limitation
periods set forth in Article 7 hereof and the limitations on liability and the
other rights of the Buyer set forth in this Article 8, the Buyer hereby
indemnifies the Selling Shareholders and holds them harmless at all times from
and after the date hereof against and in respect of:
(a) Any and all Losses resulting from any misrepresentation,
breach of warranty, nonfulfillment of any covenant or agreement on the part of
the Buyer under this Agreement;
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<PAGE>
(b) Any claim relating to Catalina that may hereafter be
commenced against them personally that is based upon events that occur
subsequent to the Closing Date; and
(c) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, losses, liabilities and reasonable legal and
other expenses incident to any of the foregoing.
8.3. Notice to the Indemnitor. For the purposes of this Section,
any person entitled to indemnification shall be known as an "Indemnified Party"
and any person liable to indemnify an Indemnified Party shall be known as the
"Indemnitor". Promptly after the assertion of any claim by a third party or
occurrence of any event that may give rise to a claim for indemnification from
the Indemnitor under this Article ("Asserted Liability"), the Indemnified Party
shall notify the Indemnitor in writing of such Asserted Liability, and with
respect to claims by third parties, advise the Indemnitor whether the
Indemnified Party intends to assume control of the defense of such claim. Any
failure to so notify the Indemnitor shall not relieve it from any liability that
it may have to the Indemnified Party under this Article 8, except to the extent
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<PAGE>
that such failure to notify shall be prejudicial to a proper defense against the
claim or action or other satisfactory resolution thereof.
8.4. Rights of Parties to Defend. If the Indemnified Party
determines to assume control of the defense of such claim in accordance with the
provisions of paragraph 8.3, the Indemnitor shall have the right to be
represented, at its own expense by its own counsel and accountants, their
participation to be subject to the reasonable direction of the Indemnified
Party. If the Indemnified Party does not assume control of the defense of any
claim of a third party by written notice given simultaneously with the notice
required under Section 9.3 hereof, the Indemnitor shall have the right, at its
own expense, to assume control of the defense of and defend against such claim.
In either case, the Indemnified Party shall make available to the Indemnitor and
its attorneys and accountants, at all reasonable times during normal business
hours, all books, records, and other documents in its possession relating to
such claim. The party assuming control of the defense of any such claim shall be
furnished all reasonable assistance in connection therewith by the other party.
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<PAGE>
8.5. Settlement.
(a) To the extent that the settlement of a claim, the defense
of which has been assumed by the Indemnitor, involves the payment of money only,
the Indemnitor shall have the right, in consultation with the Indemnified Party,
to settle those aspects dealing only with the payment of money, provided that
the Indemnitor pays such money and such settlement includes a general release
from the other parties to such proceeding in favor of the Indemnified Party.
Notwithstanding the foregoing, in connection with any such defense or
settlement, the Indemnitor shall not enter into a consent decree involving
injunctive or other non-monetary relief or consent to an injunction without the
Indemnified Party's prior written consent.
(b) In the event that the Indemnified Party desires to settle
any third party claim (whether or not contested by the Indemnitor), the
Indemnified Party shall advise the Indemnitor in writing of the amount it
proposes to pay in settlement thereof (the "Proposed Settlement"). If such
Proposed Settlement is unsatisfactory to the Indemnitor, it shall have the
right, at its expense, to continue to defend the claim or to assume control of
the defense of such claim from the Indemnified Party, as the case may be, by
giving written notice of such election to the Indemnified Party within ten (10)
business days after the Indemnitor's receipt of the advice of the Proposed
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<PAGE>
Settlement. If the Indemnitor does not deliver such written notice within ten
(10) business days after receipt of such advice, the Indemnified Party may offer
the Proposed Settlement to the third party making such claim. If the Proposed
Settlement is not accepted by the party making such claim, any new Proposed
Settlement figure that the Indemnified Party may wish to present to the party
making such claim shall first be presented to the Indemnitor which shall have
the right, subject to the conditions hereinabove set forth in this Section, to
assume control of the defense of such claim. With respect to the handling of all
settlement proposals as set forth in this Section 9.5, the Indemnitor shall
indemnify the Indemnified Party and hold it harmless against and from any and
all costs of defense, payment or settlement, including reasonable attorneys'
fees, incurred in connection therewith.
8.6. Reimbursement. At the time that the Indemnified Party shall
suffer a loss because of a breach of warranty, representation or covenant by the
Indemnitor or at the time the amount of any liability on the part of the
Indemnitor under this Section is determined (which in the case of payments to
third persons shall be the earlier of (i) the date of such payments or (ii) the
date that a court of competent jurisdiction shall enter a final judgment, order
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<PAGE>
or decree (after exhaustion of appeal rights establishing such liability)), the
Indemnitor shall forthwith, upon notice from the Indemnified Party, pay to the
Indemnified Party the amount of the indemnity claim. If such amount is not paid
forthwith, then the Indemnified Party may, at its option, take legal action
against the Indemnitor for reimbursement in the amount of its indemnity claim.
For purposes hereof the indemnity claim shall include the amounts so paid (or
determined to be owing) by the Indemnified Party together with costs and
reasonable attorney's fees and interest on the foregoing items at the rate of
10% per annum from the date the indemnity claim is due from the Indemnified
Party to the Indemnitor, as hereinabove provided, until the indemnity claim
shall be paid.
8.7. Tax Indemnification. In accordance with the indemnification
obligations of Selling Shareholders set forth elsewhere in this Article 8, the
Selling Shareholders shall be liable for, shall pay and shall indemnify and hold
the Buyer and Catalina harmless against taxes, interest, penalties, assessments
and deficiencies of Catalina for any taxable year or taxable period ending on or
before the date hereof due or payable with respect to the operations, assets or
business of Catalina on or before the date hereof, including any taxes,
interest, penalties, assessments and deficiencies resulting
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<PAGE>
from making the Section 338(h)(10) Election and any liability for taxes,
interest, penalties, assessments and deficiencies pursuant to Treasury
Regulation ss.1.1502-6.
9. Miscellaneous Provisions.
9.1. Execution in Counterparts. This Agreement may be executed in
one or more counterparts, all of which together shall constitute one and the
same agreement.
9.2. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or made as of the date delivered if delivered personally, or received
if sent by overnight courier or if mailed by registered or certified mail,
postage prepaid, return receipt requested, as follows:
If to Selling
Shareholders: David G. Shaw and
David G. Shaw and Lynn R. Shaw,
as Trustees
1041 E. Calle Mariposa
Tucson, Arizona 85718
Marc G. Langlois
5717 N. Camino Arturo
Tucson, Arizona 85718
Copy to: Chandler, Tullar, Udall & Redhair
33 N. Stone Avenue, Suite 1700
Tucson, Arizona 85701-1415
Attn: Joe F. Tarver
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<PAGE>
If to Buyer: Presstek, Inc.
8 Commercial Street
Hudson, New Hampshire 03051
Attn: Richard Williams
Copy to: Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attn: Gary A. Schonwald, Esq.
If to Madocks: John E. Madocks
110 E. Yvon Drive
Tucson, Arizona 85704
Copy to: Chandler, Tullar, Udall & Redhair
33 N. Stone Avenue, Suite 1700
Tucson, Arizona 85701-1415
Attn: Joe F. Tarver
or to such other address as any party shall have designated by like notice to
the other party hereto.
9.3. Amendment. This Agreement may only be amended by a written
instrument executed by each of the parties hereto.
9.4. Entire Agreement. This Agreement (together with the other
agreements and documents being delivered pursuant to or in connection with this
Agreement) constitutes the entire agreement of the parties hereto with respect
to the subject matter hereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
9.5. Applicable Law. This Agreement shall be governed by the laws of
the State of New Hampshire applicable to contracts made and to be wholly
performed therein, without giving effect to principals of conflicts of laws.
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<PAGE>
9.6. Headings. The headings contained herein are for the sole
purpose of convenience of reference and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
9.7. Assignment. Neither this Agreement nor any rights, interests or
obligations hereunder may be assigned (by operation of law or otherwise) by any
party hereto without the prior written consent of all of the parties hereto,
except that this Agreement may be assigned to a subsidiary of the Buyer without
the need for such prior consent.
9.8. Binding Effect; Benefits. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto and their respective
heirs, legal representatives, successors and permitted assigns. Nothing herein
contained, express or implied, is intended to confer upon any person other than
the parties hereto and their respective heirs, legal representatives, successors
and permitted assigns, any rights or remedies under or by reason of this
Agreement.
9.9. Waiver. The failure of any of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
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<PAGE>
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of either of the parties
hereto to thereafter enforce each and every provision of this Agreement. No
waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written document executed by the party or
parties against whom or which enforcement of such waiver is sought; and no
waiver of any such breach shall be construed or deemed to be a waiver of any
other or subsequent breach.
9.10. Severability. Any provision of this Agreement that is held by
a court of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction shall be, as to such jurisdiction, ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
9.11. Schedules. The Schedules delivered pursuant to this Agreement
and all documents referred therein as having been previously produced are an
integral part hereof. Each such Schedule shall be in writing and shall indicate
the section of this Agreement pursuant to which it is being delivered.
9.12. Further Actions. At any time and from time to time, each party
agrees, at its own expense, to take such actions and to execute and deliver such
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documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto as of the date first above written.
PRESSTEK, INC.
By:/s/ Robert Howard
---------------------------------
Name: Robert Howard
Title: Chairman
CATALINA COATINGS, INC.
By:/s/ David G. Shaw
---------------------------------
Name: David G. Shaw
Title: President
/s/ John E. Madocks
----------------------------------
John E. Madocks
/s/ Marc G. Langlois
----------------------------------
Marc G. Langlois
/s/ David G. Shaw
----------------------------------
David G. Shaw, individually and as
Trustee of the David and Lynn Shaw
Charitable Remainder Unitrust dated
February 12, 1996
/s/ Lynn R. Shaw
----------------------------------
Lynn R. Shaw, as Trustee of the
David and Lynn Shaw Charitable
Remainder Unitrust dated
February 12, 1996
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PUT AND CALL OPTION AGREEMENT
PUT AND CALL OPTION AGREEMENT entered into this 15th day of
February, 1996 (this "Agreement"), by and among Presstek, Inc., a Delaware
corporation (the "Buyer") and David G. Shaw ("Shaw"), Marc G. Langlois
("Langlois") (collectively, the "Selling Shareholders") and John E. Madocks
("Madocks") and Catalina Coatings, Inc., an Arizona corporation ("Catalina").
W I T N E S S E T H :
WHEREAS, the Buyer, the Selling Shareholders, David G. Shaw
and Lynn R. Shaw, as Trustees of the David and Lynn Shaw Charitable Remainder
Unitrust, dated February 12, 1996 (the "Trustees"), Madocks and Catalina have
entered into a Stock Purchase Agreement of even date herewith, pursuant to which
the Selling Shareholders and the Trustees sold and the Buyer purchased 11,250
shares of Common Stock of Catalina ("Common Stock") constituting 90% of the
issued and outstanding shares of Common Stock (the "Stock Purchase Agreement");
WHEREAS, the obligation of the Buyer to purchase the shares of
Common Stock pursuant to the Stock Purchase Agreement is subject to the
execution and delivery of this Agreement;
WHEREAS, the Selling Shareholders have transferred a
portion of the shares of Common Stock to Madocks;
WHEREAS, the Selling Shareholders and Madocks desire to grant
to the Buyer an irrevocable call option, but not the obligation, which shall
<PAGE>
give the Buyer the right to purchase 1,429 shares of Common Stock as such shares
are still owned by the Selling Shareholders and Madocks (the "Option Shares"),
subject to the terms and conditions hereinafter set forth;
WHEREAS, the Buyer desires to grant to the Selling
Shareholders and Madocks a put option, which shall give the Selling Shareholders
the right to sell to the Buyer the Option Shares, on the terms and conditions
hereinafter set forth; and
WHEREAS, unless otherwise indicated, the terms herein shall
have the same meaning as used in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
1. The Call Option.
1.1. Each Selling Shareholder and Madocks hereby grant to
the Buyer, subject to the terms and conditions of this Agreement, an irrevocable
option, but not the obligation, to purchase all, but not less than all, of the
Option Shares listed on Exhibit A hereto as owned by such Selling Shareholder
and Madocks (the "Call Option"), exercisable at the sole discretion of the Buyer
at a single time at anytime from and after the fourth anniversary from the date
hereof (the "Call Exercise Period").
1.2. The Buyer may exercise the Call Option by giving
written notice of such election to the Selling Shareholders in accordance with
paragraph 7 hereby (the "Call Exercise Notice").
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<PAGE>
1.3. The closing of the Option Shares purchased pursuant to
exercise of the Call Option shall take place no later than ten (10) days after
receipt by the Selling Shareholders and Madocks of the Call Exercise Notice (the
"Option Closing Date").
1.4. The purchase price for the Option Shares purchased
pursuant to the exercise of the Call Option shall be $2,000,000 payable
$1,371,588 to Shaw, $589,223 to Langlois, and $39,189 to Madocks. The aggregate
purchase price for the Option Shares subject to the Call Option is hereinafter
referred to as the "Call Purchase Price."
1.5. Each certificate representing the Option Shares shall
have stamped, printed or typed thereon, the following legend:
"The sale, assignment, transfer, pledge or
hypothecation of the Shares represented by
this certificate is subject to a Put and Call
Option Agreement dated as of the 15th day of
February, 1996 by and among PRESSTEK, INC.,
DAVID G. SHAW, MARC G. LANGLOIS, JOHN E.
MADOCKS and CATALINA COATINGS, INC., an
executed copy of which is on file at the
office of Catalina Coatings, Inc."
2. The Put Option.
2.1. The Buyer hereby grants to the Selling Shareholders
and Madocks the separate right, but not the obligation, to cause the Buyer to
purchase those shares of the Option Shares owned by him at a single time subject
to the terms and conditions of this Agreement, at anytime from and after the
fourth anniversary from the date hereof plus six months, subject to the possible
prior exercise of the Call Option (the "Put Option").
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<PAGE>
2.2. The Selling Shareholders and Madocks may exercise the
Put Option by giving written notice of such election to the Buyer (a "Put
Exercise Notice") in accordance with the terms of paragraph 7 hereby.
2.3. The closing of the Option Shares sold pursuant to the
Put Option shall take place no later than ten (10) days after the receipt by the
Buyer of a Put Exercise Notice (the "Option Closing Date").
2.4. The purchase price for the Option Shares purchased
pursuant to the exercise of the Put Option shall be $685,794 for Shaw, $294,611
for Langlois, and $19,595 for Madocks. The purchase price for the Option Shares
subject to a Put Option is hereinafter referred to as the "Put Purchase Price".
3. Closing of Option Shares; Payment of Purchase Price. At
the closing, the Selling Shareholders and Madocks,as the case may be, shall
deliver the stock certificates representing his portion of the Option Shares to
the Buyer duly endorsed for transfer to the Buyer (or its designee) or
accompanied by properly executed stock powers (with signatures guaranteed and
otherwise in form acceptable for transfer on the books of Catalina free and
clear of any and all Liens, and free and clear of any provisions of any
stockholders' agreement or voting trust and the Selling Shareholders and Madocks
shall so represent. Also at the closing, the Call Purchase Price or the Put
Purchase Price, as the case may be, shall be paid by the Buyer by cash or by
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<PAGE>
certified or cashier checks payable to each of Shaw, Langlois and Madocks
respectively, for the amounts set forth in subparagraph 1.4 or 2.4, as the case
may be.
4. Option Shares. For purposes of this Agreement, the
number of Option Shares shall be altered and adjusted by reason
of any capital stock changes in Catalina.
5. Simultaneous Transactions.
Any and all of the obligations of the parties pursuant to
this Agreement shall be subject to the consummation of the transaction
contemplated by the Stock Purchase Agreement.
6. Initial Public Offering. In the event of a successful
initial public offering with respect to Catalina prior to the fourth anniversary
of the Closing Date, this Agreement shall become null and void and of no further
force and effect and the parties shall no longer have any obligations to each
other, whatsoever, with respect to any provisions contained in this Agreement.
7. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or made as of the date delivered if delivered personally, or received
if sent by overnight courier or if mailed by registered or certified mail,
postage prepaid, return receipt requested, as follows:
If to Selling
Shareholders: David G. Shaw
1041 E. Calle Mariposa
Tucson, Arizona 85718
Marc G. Langlois
5717 N. Camino Arturo
Tucson, Arizona 85718
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<PAGE>
Copy to: Chandler, Tullar, Udall & Redhair
33 N. Stone Avenue, Suite 1700
Tucson, Arizona 85701-1415
Attn: Joe F. Tarver
If to Buyer: Presstek, Inc.
8 Commercial Street
Hudson, New Hampshire 03051
Attn: Richard A. Williams
Copy to: Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attn: Gary A. Schonwald, Esq.
or to such other address as any party shall have designated by like notice to
the other party hereto.
8. Complete Agreement.
This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof.
9. Amendments.
No amendment, change, modification, addition or termination of
this Agreement or any part thereof shall be valid unless in writing and signed
by or on behalf of the party to be charged therewith, and no waiver of any of
the provisions hereof nor consent to any departure therefrom by any party
hereto, shall be effective unless in writing and signed by the party to be
charged with such waiver. No waiver shall be deemed a continuing waiver or
waiver in respect of any subsequent breach or default, whether of similar or
different nature, unless expressly so stated in writing.
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<PAGE>
10. Headings.
The headings or captions in this Agreement are for convenience
and reference only, and do not form a part hereof, and do not in any way modify,
interpret or construe the intent of the parties or affect any of the provisions
of this Agreement.
11. Governing Law.
This Agreement is intended to be governed by, interpreted and
enforced in accordance with the laws of the State of New Hampshire, without
giving effect to conflicts of law principles.
12. Transfers and Assignment.
12.1. Neither this Agreement nor any rights, interests or
obligations hereunder may be assigned (by operation of law other than by reason
of death or otherwise) by any party hereto without the prior written consent of
all of the parties hereto.
12.2. Catalina shall not at any time permit any transfer
to be made on its books or records of the certificates representing the Option
Shares of any Selling Shareholder unless such transfer is made pursuant to, and
in accordance with, the terms and conditions of this Agreement.
12.3. Each of the Selling Shareholders and Madocks hereby
covenant that they shall not sell, transfer, convey, pledge, encumber or
otherwise dispose of all or any of his Option Shares, except as provided in this
Agreement.
12.4. Notwithstanding the foregoing, the Selling
Shareholders and Madocks may assign and transfer ownership of any or all of
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<PAGE>
their respective Option Shares and their rights and obligations under this
Agreement to a trust or trusts in which they or their family members or their
estate, or any combination thereof, is the beneficiary, and additionally, in the
case of Langlois, in which Craig Mathis is a beneficiary.
13. Binding Effect; Benefits. This Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
Nothing herein contained, express or implied, is intended to confer upon any
person other than the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns, any rights or remedies under
or by reason of this Agreement.
14. Severability. Any provision of this Agreement which is
held by a court of competent jurisdiction to be prohibited or unenforceable in
any jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
agreement as of the day and year first above written.
PRESSTEK, INC., a Delaware corporation
By: /s/ Robert Howard
--------------------------------------
Name: Robert Howard
Title Chairman
/s/ David G. Shaw
--------------------------------------
David G. Shaw
/s/ Marc G. Langlois
--------------------------------------
Marc G. Langlois
/s/ John E. Madocks
--------------------------------------
John E. Madocks
CATALINA COATINGS, INC.,
an Arizona corporation
By: /s/ David G. Shaw
--------------------------------------
Name: David G. Shaw
Title: President
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<PAGE>
EXHIBIT A
Selling Shareholder Number of Option Shares Owned
- ------------------- -----------------------------
David G. Shaw 858
Marc G. Langlois 367
John E. Madocks 25
-----
TOTAL 1,250
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CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT entered into
this 15th day of February, 1996 (this "Agreement"), by and among Presstek, Inc.,
a Delaware corporation (the "Buyer"), David G. Shaw ("Shaw") and Catalina
Coatings, Inc., an Arizona corporation ("Catalina").
W I T N E S S E T H :
WHEREAS, the Buyer, Shaw, Marc G. Langlois, John E. Madocks
and David G. Shaw and Lynn R. Shaw, as Trustees of The David and Lynn Shaw
Charitable Remainder Unitrust, dated February 12, 1996, and Catalina have
entered into a Stock Purchase Agreement of even date herewith (the "Stock
Purchase Agreement"), pursuant to which Messrs. Shaw and Langlois are required
to enter into covenants of confidentiality and non-competition with Catalina and
the Buyer; and
WHEREAS, Catalina has entered into separate employment
agreements (separately, the "Employment Agreement") with each of Messrs.
Langlois and Shaw pursuant to which they are required to enter covenants of
confidentially and non-competition with Catalina; and
WHEREAS, the covenants of Shaw set forth in this Agreement are
intended to be the covenants so required under the Stock Purchase Agreement and
the Employment Agreement; and
<PAGE>
WHEREAS, unless otherwise indicated, capitalized terms herein
shall have the same meaning as used in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. As used in this Agreement, the term "Confidential
Information" shall mean any and all information (oral and written) relating to
Catalina or to the Buyer or to their respective properties, assets, operations
or business, other than such information which can be shown by Shaw to be in the
public domain (such information not being deemed to be in the public domain
merely because it is embraced by more general information which is in the public
domain) other than as the result of a breach of the provisions of Section 2
below, including, but not limited to, information relating to: their prospective
products, processes, strategic plans and proposals, know how, prospects,
financial condition and condition of the operations or marketing plans of
Catalina and/or the Buyer.
2. In consideration of $100,000.00, receipt of which is hereby
acknowledged, Shaw hereby agrees to not, at any time, directly or indirectly,
use, communicate, disclose or disseminate any Confidential Information in any
manner whatsoever.
3. In consideration of $100,000.00, receipt of which is hereby
acknowledged, Shaw hereby agrees to not, during the term of his employment
pursuant to the Employment Agreement and for a period of two years thereafter
-2-
<PAGE>
(but in no event for less than a four-year period commencing the date hereof),
directly or indirectly (A) engage or become interested in any business (whether
as owner, manager, operator, licensor, licensee, lender, partner, stockholder,
joint venturer, director, officer, employee, consultant, partner, agent,
independent contractor, or otherwise) that is competitive with the business of
Catalina as of the date hereof at any time during his employment, or (B) take
any other action that constitutes an interference with or a disruption of the
Buyer's operation of the business of Catalina or the Buyer or the Buyer's use,
ownership and enjoyment of the assets and properties of Catalina throughout the
continental United States. Notwithstanding the foregoing, nothing shall prohibit
Shaw from acquiring and holding up to two percent (2%) of the publicly traded
equity securities of a business that competes with Catalina or the Buyer.
4. For purposes of clarification, but not of limitation, Shaw
hereby acknowledges and agrees that the provisions of Section 3 above shall
serve as a prohibition against him during the period described therein, directly
or indirectly, hiring, offering to hire, enticing away or in any other manner
persuading or attempting to persuade any officer, employee, agent, consultant,
lessor, lessee, licensor, licensee, customer, prospective customer or supplier
of Catalina to discontinue or alter his or its relationship with Catalina.
5. The parties hereto hereby acknowledge and agree that (i)
the Buyer and Catalina would be irreparably injured in the event of a breach by
-3-
<PAGE>
Shaw of any of his obligations under this Agreement, (ii) monetary damages would
not be an adequate remedy for any such breach, and (iii) the Buyer and Catalina
shall be entitled to injunctive relief, in addition to any other remedy that
they may have, in the event of any such breach. If any restriction contained in
this Agreement shall be deemed to be invalid, illegal or unenforceable by reason
of the extent, duration, or geographical scope thereof, or otherwise, then the
court making such determination shall have the right to reduce such extent,
duration, geographical scope, or other provisions hereof, and in its reduced
form such restriction shall then be enforceable in the manner contemplated
hereby.
6. This Agreement may only be amended by a written instrument
executed by each of the parties hereto.
7. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
8. This Agreement shall be governed by the laws of the State
of New Hampshire applicable to contracts made and to be wholly performed
therein, without giving effect to principles of conflicts of laws.
9. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Nothing herein contained,
express or implied, is intended to confer upon any person other than the parties
-4-
<PAGE>
hereto and their respective heirs, legal representatives, successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
10. The failure of any of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of either of the parties
hereto to thereafter enforce each and every provision of this Agreement. No
waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no
waiver of any such breach shall be construed or deemed to be a waiver of any
other or subsequent breach.
11. If any provision of this Agreement is held or declared
invalid or unenforceable for any reason by any court of competent jurisdiction,
such provision shall be modified by such court to the extent necessary to make
the provision valid and operative, or if it cannot be so modified, then the
provision shall be severed, and the remainder of the Agreement shall continue in
full force and effect as if the Agreement has been signed with the invalid
portion so modified or eliminated but shall not affect any other provision of
this Agreement.
12. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
-5-
<PAGE>
made as of the date delivered if delivered personally, or received if sent by
overnight courier or if mailed by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to Shaw: David G. Shaw
1041 E. Calle Mariposa
Tucson, Arizona 85718
Copy to: Chandler, Tullar, Udall & Redhair
33 N. Stone Avenue, Suite 1700
Tucson, Arizona 85701-1415
Attn: Joe F. Tarver
If to Buyer: Presstek, Inc.
8 Commercial Street
Hudson, New Hampshire 03051
Attn: Richard Williams
Copy to: Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attn: Gary A. Schonwald, Esq.
or to such other address as any party shall have designated by like notice to
the other party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
PRESSTEK, INC., a Delaware corporation
By: /s/ Robert Howard
--------------------------
Name: Robert Howard
Title: Chairman
CATALINA COATINGS, INC., an Arizona
corporation
By: /s/ David G. Shaw
--------------------------
Name: David G. Shaw
Title: President
/s/ David G. Shaw
--------------------------
David G. Shaw
-6-
<PAGE>
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT entered into
this 15th day of February, 1996 (this "Agreement"), by and among Presstek, Inc.,
a Delaware corporation (the "Buyer"), Marc E. Langlois ("Langlois") and Catalina
Coatings, Inc., an Arizona corporation ("Catalina").
W I T N E S S E T H :
WHEREAS, the Buyer, David G. Shaw, Langlois, John E. Madocks
and David G. Shaw and Lynn R. Shaw, as Trustees of the David and Lynn Shaw
Charitable Remainder Unitrust, dated February 12, 1996, and Catalina have
entered into a Stock Purchase Agreement of even date herewith (the "Stock
Purchase Agreement"), pursuant to which Messrs. Shaw, Langlois and Madocks are
required to enter into covenants of confidentiality and non-competition with
Catalina and the Buyer; and
WHEREAS, Catalina has entered into separate employment
agreements (separately, the "Employment Agreement") with each of Messrs.
Langlois and Shaw pursuant to which they are required to enter covenants of
confidentially and non-competition with Catalina; and
WHEREAS, the covenants of Langlois set forth in this Agreement
are intended to be the covenants so required under the Stock Purchase Agreement
and the Employment Agreement; and
<PAGE>
WHEREAS, unless otherwise indicated, capitalized terms herein
shall have the same meaning as used in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. As used in this Agreement, the term "Confidential
Information" shall mean any and all information (oral and written) relating to
Catalina or to the Buyer or to their respective properties, assets, operations
or business, other than such information which can be shown by Langlois to be in
the public domain (such information not being deemed to be in the public domain
merely because it is embraced by more general information which is in the public
domain) other than as the result of a breach of the provisions of Section 2
below, including, but not limited to, information relating to: their prospective
products, processes, strategic plans and proposals, know how, prospects,
financial condition and condition of the operations or marketing plans of
Catalina and/or the Buyer.
2. In consideration of $100,000.00, receipt of which is hereby
acknowledged, Langlois hereby agrees to not, at any time, directly or
indirectly, use, communicate, disclose or disseminate any Confidential
Information in any manner whatsoever.
3. In consideration of $100,000.00, receipt of which is hereby
acknowledged, Langlois hereby agrees to not, during the term of his employment
-2-
<PAGE>
pursuant to the Employment Agreement and for a period of two years thereafter
(but in no event for less than a four-year period commencing the date hereof),
directly or indirectly (A) engage or become interested in any business (whether
as owner, manager, operator, licensor, licensee, lender, partner, stockholder,
joint venturer, director, officer, employee, consultant, partner, agent,
independent contractor, or otherwise) that is competitive with the business of
Catalina as of the date hereof at any time during his employment, or (B) take
any other action that constitutes an interference with or a disruption of the
Buyer's operation of the business of Catalina or the Buyer or the Buyer's use,
ownership and enjoyment of the assets and properties of Catalina throughout the
continental United States. Notwithstanding the foregoing, nothing shall prohibit
Langlois from acquiring and holding up to two percent (2%) of the publicly
traded equity securities of a business that competes with Catalina or the Buyer.
4. For purposes of clarification, but not of limitation,
Langlois hereby acknowledges and agrees that the provisions of Section 3 above
shall serve as a prohibition against him during the period described therein,
directly or indirectly, hiring, offering to hire, enticing away or in any other
manner persuading or attempting to persuade any officer, employee, agent,
consultant, lessor, lessee, licensor, licensee, customer, prospective customer
or supplier of Catalina to discontinue or alter his or its relationship with
Catalina.
5. The parties hereto hereby acknowledge and agree that (i)
the Buyer and Catalina would be irreparably injured in the event of a breach by
-3-
<PAGE>
Langlois of any of his obligations under this Agreement, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Buyer and
Catalina shall be entitled to injunctive relief, in addition to any other remedy
that they may have, in the event of any such breach. If any restriction
contained in this Agreement shall be deemed to be invalid, illegal or
unenforceable by reason of the extent, duration, or geographical scope thereof,
or otherwise, then the court making such determination shall have the right to
reduce such extent, duration, geographical scope, or other provisions hereof,
and in its reduced form such restriction shall then be enforceable in the manner
contemplated hereby.
6. This Agreement may only be amended by a written instrument
executed by each of the parties hereto.
7. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
8. This Agreement shall be governed by the laws of the State
of New Hampshire applicable to contracts made and to be wholly performed
therein, without giving effect to principles of conflicts of laws.
9. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Nothing herein contained,
-4-
<PAGE>
express or implied, is intended to confer upon any person other than the parties
hereto and their respective heirs, legal representatives, successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
10. The failure of any of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of either of the parties
hereto to thereafter enforce each and every provision of this Agreement. No
waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no
waiver of any such breach shall be construed or deemed to be a waiver of any
other or subsequent breach.
11. If any provision of this Agreement is held or declared
invalid or unenforceable for any reason by any court of competent jurisdiction,
such provision shall be modified by such court to the extent necessary to make
the provision valid and operative, or if it cannot be so modified, then the
provision shall be severed, and the remainder of the Agreement shall continue in
full force and effect as if the Agreement has been signed with the invalid
portion so modified or eliminated but shall not affect any other provision of
this Agreement.
12. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
-5-
<PAGE>
made as of the date delivered if delivered personally, or received if sent by
overnight courier or if mailed by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to Langlois: Marc G. Langlois
5717 N. Camino Arturo
Tucson, Arizona 85718
Copy to: Chandler, Tullar, Udall & Redhair
33 N. Stone Avenue, Suite 1700
Tucson, Arizona 85701-1415
Attn: Joe F. Tarver
If to Buyer: Presstek, Inc.
8 Commercial Street
Hudson, New Hampshire 03051
Attn: Richard Williams
Copy to: Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attn: Gary A. Schonwald, Esq.
or to such other address as any party shall have designated by like notice to
the other party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
PRESSTEK, INC., a Delaware corporation
By: /s/ Robert Howard
---------------------------------
Name: Robert Howard
Title: Chairman
CATALINA COATINGS, INC., an Arizona
corporation
By: /s/ David G. Shaw
----------------------------------
Name: David G. Shaw
Title: President
/s/ Marc G. Langlois
---------------------------------
Marc G. Langlois
-6-
<PAGE>
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT entered into
this 15th day of February, 1996 (this "Agreement"), by and among Presstek, Inc.,
a Delaware corporation (the "Buyer"), John E. Madocks ("Madocks") and Catalina
Coatings, Inc., an Arizona corporation ("Catalina").
W I T N E S S E T H :
WHEREAS, the Buyer, Shaw, Marc G. Langlois, John E. Madocks
and David G. Shaw and Lynn R. Shaw, as Trustees of the David and Lynn Shaw
Charitable Remainder Unitrust, dated February 12, 1996, and Catalina have
entered into a Stock Purchase Agreement of even date herewith (the "Stock
Purchase Agreement"), pursuant to which Messrs. Shaw, Langlois and Madocks are
required to enter into covenants of confidentiality and non-competition with
Catalina and the Buyer; and
WHEREAS, the covenants of Madocks set forth in this Agreement
are intended to be the covenants so required under the Stock Purchase Agreement;
and
WHEREAS, unless otherwise indicated, capitalized terms herein
shall have the same meaning as used in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
<PAGE>
1. As used in this Agreement, the term "Confidential
Information" shall mean any and all information (oral and written) relating to
Catalina or to the Buyer or to their respective properties, assets, operations
or business, other than such information which can be shown by Madocks to be in
the public domain (such information not being deemed to be in the public domain
merely because it is embraced by more general information which is in the public
domain) other than as the result of a breach of the provisions of Section 2
below, including, but not limited to, information relating to: their prospective
products, processes, strategic plans and proposals, know how, prospects,
financial condition and condition of the operations or marketing plans of
Catalina and/or the Buyer.
2. In consideration of $1.00 and other consideration, receipt
of which is hereby acknowledged, Madocks hereby agrees to not, at any time,
directly or indirectly, use, communicate, disclose or disseminate any
Confidential Information in any manner whatsoever.
3. In consideration of $1.00 and other consideration, receipt
of which is hereby acknowledged, Madocks hereby agrees to not, during the term
of his employment with Catalina, and for a period of one year thereafter,
directly or indirectly (A) engage or become interested in any business (whether
as owner, manager, operator, licensor, licensee, lender, partner, stockholder,
joint venturer, director, officer, employee, consultant, partner, agent,
independent contractor, or otherwise) that is competitive with the business of
-2-
<PAGE>
Catalina as of the date hereof at any time during his employment, or (B) take
any other action that constitutes an interference with or a disruption of the
Buyer's operation of the business of Catalina or the Buyer or the Buyer's use,
ownership and enjoyment of the assets and properties of Catalina throughout the
continental United States. Notwithstanding the foregoing, nothing shall prohibit
Madocks from acquiring and holding up to two percent (2%) of the publicly traded
equity securities of a business that competes with Catalina or the Buyer.
4. For purposes of clarification, but not of limitation,
Madocks hereby acknowledges and agrees that the provisions of Section 3 above
shall serve as a prohibition against him during the period described therein,
directly or indirectly, hiring, offering to hire, enticing away or in any other
manner persuading or attempting to persuade any officer, employee, agent,
consultant, lessor, lessee, licensor, licensee, customer, prospective customer
or supplier of Catalina to discontinue or alter his or its relationship with
Catalina.
5. The parties hereto hereby acknowledge and agree that (i)
the Buyer and Catalina would be irreparably injured in the event of a breach by
Madocks of any of his obligations under this Agreement, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Buyer and
Catalina shall be entitled to injunctive relief, in addition to any other remedy
that they may have, in the event of any such breach. If any restriction
contained in this Agreement shall be deemed to be invalid, illegal or
-3-
<PAGE>
unenforceable by reason of the extent, duration, or geographical scope thereof,
or otherwise, then the court making such determination shall have the right to
reduce such extent, duration, geographical scope, or other provisions hereof,
and in its reduced form such restriction shall then be enforceable in the manner
contemplated hereby.
6. This Agreement may only be amended by a written instrument
executed by each of the parties hereto.
7. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
8. This Agreement shall be governed by the laws of the State
of New Hampshire applicable to contracts made and to be wholly performed
therein, without giving effect to principles of conflicts of laws.
9. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Nothing herein contained,
express or implied, is intended to confer upon any person other than the parties
hereto and their respective heirs, legal representatives, successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
10. The failure of any of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
-4-
<PAGE>
this Agreement or any provision hereof or the right of either of the parties
hereto to thereafter enforce each and every provision of this Agreement. No
waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no
waiver of any such breach shall be construed or deemed to be a waiver of any
other or subsequent breach.
11. If any provision of this Agreement is held or declared
invalid or unenforceable for any reason by any court of competent jurisdiction,
such provision shall be modified by such court to the extent necessary to make
the provision valid and operative, or if it cannot be so modified, then the
provision shall be severed, and the remainder of the Agreement shall continue in
full force and effect as if the Agreement has been signed with the invalid
portion so modified or eliminated but shall not affect any other provision of
this Agreement.
12. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
made as of the date delivered if delivered personally, or received if sent by
overnight courier or if mailed by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to Shaw: John E. Madocks
10 E. Yvon Drive
Tucson, Arizona 85704
-5-
<PAGE>
Copy to: Chandler, Tullar, Udall & Redhair
33 N. Stone Avenue, Suite 1700
Tucson, Arizona 85701-1415
Attn: Joe F. Tarver
If to Buyer: Presstek, Inc.
8 Commercial Street
Hudson, New Hampshire 03051
Attn: Richard Williams
Copy to: Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attn: Gary A. Schonwald, Esq.
or to such other address as any party shall have designated by like notice to
the other party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
PRESSTEK, INC., a Delaware corporation
By: /s/ Robert Howard
-----------------------------------
Name: Robert Howard
Title: Chairman
CATALINA COATINGS, INC., an Arizona
corporation
By: /s/ David G. Shaw
-----------------------------------
Name: David G. Shaw
Title: President
/s/ John E. Madocks
------------------------------------
John E. Madocks
-6-
<PAGE>
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of this 15th
day of February, 1996, by and between Catalina Coatings, Inc., an Arizona
corporation (the "Company"), and David G. Shaw, an individual, residing at 1041
E. Calle Mariposa, Tucson, Arizona 85718 ("Employee").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ Employee, and Employee
wishes to accept such employment, all upon the terms and conditions herein
contained;
NOW, THEREFORE, the parties hereby agree as follows:
1. Term. Subject to the terms and conditions of this
Agreement, the Company hereby employs Employee, and Employee hereby accepts such
employment, commencing as of the date hereof and ending on the fourth
anniversary of the date hereof unless this Agreement is earlier terminated in
accordance with the provisions of Section 7 (the "Term").
2. Duties of Employee.
(a) General Duties. During the Term, Employee shall be
employed by the Company as its President and technical director and shall have
day-to-day responsibility for administration and product and technology
development. Employee shall report directly to the Board of Directors of the
<PAGE>
Company (the "Board") or to a duly designated representative of the Board.
Employee acknowledges that Employee's duties may be reasonably changed by the
Board, and Employee will serve the Company in such other capacities and with
such other duties and responsibilities as may be reasonably determined by the
Board. Notwithstanding the foregoing, Employee shall in no event be required to
relocate his place of residence from Tucson, Arizona. The duties and services to
be performed by Employee hereunder are collectively referred to herein as the
"Services."
(b) Other Duties and Obligations. In addition to performing
the Services described in Section 2(a), during the term of this Agreement,
Employee shall:
(i) perform the Services hereunder, subject to, and
in accordance with, the reasonable directions of the Board;
(ii) comply with and be bound by the operating
policies, procedures, standards, regulations and practices of
the Company that are in effect from time to time during
Employee's employment with the Company;
(iii) be generally available and readily accessible
to Company personnel by telephone, e-mail and facsimile at all
reasonable times.
(iv) not engage in any unethical, dishonest,
fraudulent behavior; or intentionally or deliberately cause or
attempt to cause an injury to the Company; or steal, convert,
misappropriate or wrongfully and willfully use or disclose any
proprietary information or trade secrets of the Company; or
breach any provision of the Confidentiality Agreement as
defined in Section 6 hereof.
3. Representations of Employee. Employee hereby represents and
warrants to the Company that he is free to enter into and fully perform this
-2-
<PAGE>
Agreement and the agreements referred to herein without breach of any agreement
or contract to which Employee is a party or by which Employee is bound.
4. Exclusive Service. Employee shall devote his full working
time, energy, skill and efforts exclusively to the performance of the Services
for the Company and shall apply all his skill and experience to the performance
of the Services and the advancement the Company's interests. Employee shall not
do anything inconsistent with the performance of the Services hereunder.
Notwithstanding the foregoing, Employee may engage in outside investments so
long as they only occupy a nominal amount of Employee's time.
5. Compensation.
(a) Salary. In consideration for the Services rendered by
Employee hereunder, the Company shall pay Employee a salary of $150,000.00 per
year (the "Salary") and any increases to the Salary shall be made at the option
of the Company, in its sole and absolute discretion.
(b) Expenses. During the Term, Employee shall be entitled
to receive prompt reimbursement for all reasonable expenses incurred by him in
performing services hereunder in accordance with the existing policies of
Presstek, Inc., the parent of the Company("Presstek"), provided that Employee
properly accounts therefor in accordance with the Company's policy relating
thereto.
-3-
<PAGE>
(c) Benefit Plans. Employee shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement currently available, or made available by the Company in the future,
to its employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plan or arrangement and consistent
with the benefit plans of Presstek for employees at a level comparable with that
of Employee.
(d) Vacations, Holidays and Sick Leave. Employee shall be
entitled to the number of paid holidays, personal days off, vacation days and
sick leave days in each calendar year as are determined by the Company from time
to time for its employees (prorated in any calendar year during which Employee
is employed under this Agreement for less than the entire such year, in
accordance with the number of calendar days in such calendar year during which
he is so employed), provided that Employee's continuous service date shall be
deemed to be January 1, 1991. Vacation may be taken in Employee's discretion, so
long as it is not inconsistent with the reasonable business needs of the
Company. Employee shall be entitled to accrue from year to year all vacation
days not taken by him. The vacation policy of the Company, including the
foregoing expression of Employee's entitlement, shall in all instances be made
consistent with the policy of Presstek for employees of the same or similar
level as Employee.
-4-
<PAGE>
(e) Key Man Life Insurance. If in the sole discretion of
the Board of Directors of the Company the Board shall deem it appropriate to
acquire so-called key man life insurance on the life of Employee, Employee shall
cooperate with the Company to secure, for the Company, a key man life insurance
policy on the life of Employee in an amount determined by the Board, to be paid
to the Company upon Employee's death.
(f) Base Salary Not Affected by Other Benefits. None of the
benefits to which Employee is entitled under any of the provisions of Sections
5(b) - 5(g) hereof shall in any manner reduce or be deemed to be in lieu of the
Salary payable to Employee pursuant to Section 5(a) hereof.
6. Confidentiality and Non-Competition Agreement. All
obligations of the Company hereunder, including, but not limited to, its
obligations to employ and compensate Employee shall be subject to the execution
and delivery of the Confidentiality and Non-Competition Agreement of even date
herewith executed and delivered by the Company and Employee (the
"Confidentiality Agreement").
7. Termination. Anything in this Agreement contained to the
contrary notwithstanding, Employee's employment hereunder shall terminate
forthwith upon the earlier to occur of the following:
(a) Death. Upon the death of Employee.
-5-
<PAGE>
(b) Disability. At the option of the Company, in the event
that the Board determines that Employee suffers from Disability (as hereinafter
defined) so as to be unable to substantially perform his duties hereunder for an
aggregate of one hundred and eighty (180) calendar days during any period of
twelve (12) consecutive months. As used in this Agreement, the term "Disability"
shall mean the material inability of Employee to render the Services due to
physical and/or mental infirmity in the opinion of a majority of the entire
membership of the Board set forth in a resolution giving the particulars
thereof, which opinion is concurred to by a physician or psychiatrist selected
by the Board of Directors of the Company.
(c) Cause. The Company may terminate Employee's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate Employee's employment hereunder upon (i) the continued
failure by Employee to substantially perform his duties hereunder in a manner
which amounts to gross negligence (other than any such failure resulting from
Employee's incapacity due to physical or mental illness) after demand for
substantial performance is delivered by the Company specifically identifying the
manner in which the Company believes Employee has not substantially performed
his duties, or (ii) the engaging by Employee in misconduct that is materially
injurious to the Company, monetarily or otherwise, or (iii) the violation by
Employee of the Confidentiality Agreement.
-6-
<PAGE>
(d) Notice of Termination. Any termination of Employee's
employment by the Company (other than termination pursuant to Section 5(a)
hereof) shall be communicated by written Notice of Termination to Employee. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Employee's employment under the provision so
indicated.
(e) Date of Termination. "Date of Termination" shall mean
(i) if Employee's employment is terminated by his death, the date of his death,
(ii) if Employee's employment is terminated pursuant to Section 5(b) hereof,
thirty (30) calendar days after Notice of Termination is given, (iii) if
Employee's employment is terminated pursuant to Section 5(c) hereof, the date
specified in the Notice of Termination, and (iv) if Employee's employment is
terminated for any other reason, the date on which a Notice of Termination is
given.
8. Payments and Benefits Upon Early Termination.
Upon the termination of this Agreement prior to the
expiration of the Term, the Company shall pay Employee:
(i) his Salary through the Date of
Termination at the rate in effect at the time of Notice
of Termination is given or, in the case of the death of
-7-
<PAGE>
Employee, the Date of Termination, payable at the time
such payments are due; and
(ii) all other amounts to which Employee is
entitled, including, without limitation, expense
reimbursement amounts accrued to the Date of
Termination and amounts under any benefit plan of the
Company, at the time such payments are due.
9. No Continuing Waiver. Any waiver of any breach of
this Agreement shall not be construed to be a continuing waiver or consent to
any subsequent breach on the part of the Company or Employee.
10. Notices. All notices, requests and other communications
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given, if delivered in person or by courier, telex or by facsimile
transmission or sent by registered, express or certified mail, postage prepaid,
addressed as follows.
If to Employee: David G. Shaw
1041 E. Calle Mariposa
Tucson, Arizona 85718
If to the Company: Catalina Coatings, Inc.
2555 N. Coyote Drive
Tucson, Arizona 85745
Any party may, by written notice to the other, change the address to which
notices to such party are to be delivered or mailed.
-8-
<PAGE>
11. Assignment. Neither party hereto may assign his or its
rights or delegate his or its duties under this Agreement without the prior
written consent of the other party.
12. Severability. To the extent any provision of this
Agreement shall be invalid or unenforceable, it shall be considered deleted from
this Agreement and the remainder of such provision and of this Agreement shall
be unaffected and shall continue in full force and effect.
13. Applicable Law and General. The terms and provisions of
this Agreement shall be construed and enforced in accordance with the laws of
the State of Arizona shall constitute the entire agreement by the Company and
Employee with respect to the subject matter hereof, and shall supersede any and
all prior agreements or understandings between the parties, whether written or
oral. This Agreement may be amended or modified only by written instrument
executed by the parties.
14. Interpretation. Any issues regarding construction or
interpretation of this Agreement shall be resolved without consideration of the
identity of the drafting party.
15. Headings. The headings contained in this Agreement are
solely for convenience of reference and shall not limit or affect the meaning
construction or interpretation of any of the terms or provisions of this
Agreement.
-9-
<PAGE>
16. Attorney's Fees. In the event of litigation over the terms
of this Agreement, the prevailing party shall be entitled to an award of
reasonable attorney's fees and costs.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
CATALINA COATINGS, INC., an Arizona
corporation
By:/s/ David G. Shaw
-----------------------------------
Name: David G. Shaw
Title: President
/s/ David G. Shaw
-----------------------------------
David G. Shaw
-10-
<PAGE>
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of this 15th
day of February, 1996, by and between Catalina Coatings, Inc., an Arizona
corporation (the "Company"), and Marc G. Langlois an individual, residing at
5717 N. Camino Arturo, Tucson, Arizona 85718 ("Employee").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ Employee, and Employee
wishes to accept such employment, all upon the terms and conditions herein
contained;
NOW, THEREFORE, the parties hereby agree as follows:
1. Term. Subject to the terms and conditions of this
Agreement, the Company hereby employs Employee, and Employee hereby accepts such
employment, commencing as of the date hereof and ending on the fourth
anniversary of the date hereof unless this Agreement is earlier terminated in
accordance with the provisions of Section 7 (the "Term").
2. Duties of Employee.
(a) General Duties. During the Term, Employee shall be
employed by the Company as its Vice-President of Engineering and shall have
day-to-day responsibility for equipment design, development and production.
Employee shall report directly to the Board of Directors of the Company (the
"Board") or to a duly designated representative of the Board. Employee
acknowledges that Employee's duties may be reasonably changed by the Board, and
Employee will serve the Company in such other capacities and with such other
<PAGE>
duties and responsibilities as may be reasonably determined by the Board.
Notwithstanding the foregoing, Employee shall in no event be required to
relocate his place of residence from Tucson, Arizona. The duties and services to
be performed by Employee hereunder are collectively referred to herein as the
"Services."
(b) Other Duties and Obligations. In addition to performing
the Services described in Section 2(a), during the term of this Agreement,
Employee shall:
(i) perform the Services hereunder, subject to,
and in accordance with, the reasonable directions of
the Board;
(ii) comply with and be bound by the operating
policies, procedures, standards, regulations and practices of
the Company that are in effect from time to time during
Employee's employment with the Company;
(iii) be generally available and readily accessible
to Company personnel by telephone, e-mail and facsimile at all
reasonable times.
(iv) not engage in any unethical, dishonest,
fraudulent behavior; or intentionally or deliberately cause or
attempt to cause an injury to the Company; or steal, convert,
misappropriate or wrongfully and willfully use or disclose any
proprietary information or trade secrets of the Company; or
breach any provision of the Confidentiality Agreement as
defined in Section 6 hereof.
3. Representations of Employee. Employee hereby represents and
warrants to the Company that he is free to enter into and fully perform this
Agreement and the agreements referred to herein without breach of any agreement
or contract to which Employee is a party or by which Employee is bound.
4. Exclusive Service. Employee shall devote his full working
time, energy, skill and efforts exclusively to the performance of the Services
for the Company and shall apply all his skill and experience to the performance
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<PAGE>
of the Services and the advancement the Company's interests. Employee shall not
do anything inconsistent with the performance of the Services hereunder.
Notwithstanding the foregoing, Employee may engage in outside investments so
long as they only occupy a nominal amount of Employee's time.
5. Compensation.
(a) Salary. In consideration for the Services rendered by
Employee hereunder, the Company shall pay Employee a salary of $150,000.00 per
year (the "Salary") and any increases to the Salary shall be made at the option
of the Company, in its sole and absolute discretion.
(b) Expenses. During the Term, Employee shall be entitled
to receive prompt reimbursement for all reasonable expenses incurred by him in
performing services hereunder in accordance with the existing policies of
Presstek, Inc., the parent of the Company("Presstek"), provided that Employee
properly accounts therefor in accordance with the Company's policy relating
thereto.
(c) Benefit Plans. Employee shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement currently available, or made available by the Company in the future,
to its employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plan or arrangement and consistent
with the benefit plans of Presstek for employees at a level comparable with that
of Employee.
-3-
<PAGE>
(d) Vacations, Holidays and Sick Leave. Employee shall be
entitled to the number of paid holidays, personal days off, vacation days and
sick leave days in each calendar year as are determined by the Company from time
to time for its employees (prorated, in any calendar year during which Employee
is employed under this Agreement for less than the entire such year, in
accordance with the number of calendar days in such calendar year during which
he is so employed), provided that Employee's continuous service date shall be
deemed to be January 1, 1991. Vacation may be taken in Employee's discretion, so
long as it is not inconsistent with the reasonable business needs of the
Company. Employee shall be entitled to accrue from year to year all vacation
days not taken by him. The vacation policy of the Company, including the
foregoing expression of Employee's entitlement, shall in all instances be made
consistent with the policy of Presstek for employees of the same or similar
level as Employee.
(e) Key Man Life Insurance. If in the sole discretion of
the Board of Directors of the Company the Board shall deem it appropriate to
acquire so-called key man life insurance on the life of Employee, Employee shall
cooperate with the Company to secure, for the Company, a key man life insurance
policy on the life of Employee in an amount determined by the Board, to be paid
to the Company upon Employee's death.
(f) Base Salary Not Affected by Other Benefits. None of the
benefits to which Employee is entitled under any of the provisions of Sections
-4-
<PAGE>
5(b) - 5(g) hereof shall in any manner reduce or be deemed to be in lieu of the
Salary payable to Employee pursuant to Section 5(a) hereof.
6. Confidentiality and Non-Competition Agreement. All
obligations of the Company hereunder, including, but not limited to, its
obligations to employ and compensate Employee shall be subject to the execution
and delivery of the Confidentiality and Non-Competition Agreement of even date
herewith executed and delivered by the Company and Employee (the
"Confidentiality Agreement").
7. Termination. Anything in this Agreement contained to the
contrary notwithstanding, Employee's employment hereunder shall terminate
forthwith upon the earlier to occur of the following:
(a) Death. Upon the death of Employee.
(b) Disability. At the option of the Company, in the event
that the Board determines that Employee suffers from Disability (as hereinafter
defined) so as to be unable to substantially perform his duties hereunder for an
aggregate of one hundred and eighty (180) calendar days during any period of
twelve (12) consecutive months. As used in this Agreement, the term "Disability"
shall mean the material inability of Employee to render the Services due to
physical and/or mental infirmity in the opinion of a majority of the entire
membership of the Board set forth in a resolution giving the particulars
thereof, which opinion is concurred to by a physician or psychiatrist selected
by the Board of Directors of the Company.
(c) Cause. The Company may terminate Employee's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
-5-
<PAGE>
"Cause" to terminate Employee's employment hereunder upon (i) the continued
failure by Employee to substantially perform his duties hereunder in a manner
which amounts to gross negligence (other than any such failure resulting from
Employee's incapacity due to physical or mental illness) after demand for
substantial performance is delivered by the Company specifically identifying the
manner in which the Company believes Employee has not substantially performed
his duties, or (ii) the engaging by Employee in misconduct that is materially
injurious to the Company, monetarily or otherwise, or (iii) the violation by
Employee of the Confidentiality Agreement.
(d) Notice of Termination. Any termination of Employee's
employment by the Company (other than termination pursuant to Section 5(a)
hereof) shall be communicated by written Notice of Termination to Employee. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Employee's employment under the provision so
indicated.
(e) Date of Termination. "Date of Termination" shall mean
(i) if Employee's employment is terminated by his death, the date of his death,
(ii) if Employee's employment is terminated pursuant to Section 5(b) hereof,
thirty (30) calendar days after Notice of Termination is given, (iii) if
Employee's employment is terminated pursuant to Section 5(c) hereof, the
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<PAGE>
date specified in the Notice of Termination, and (iv) if Employee's employment
is terminated for any other reason, the date on which a Notice of Termination is
given.
8. Payments and Benefits Upon Early Termination.
Upon the termination of this Agreement prior to the
expiration of the Term, the Company shall pay Employee:
(i) his Salary through the Date of
Termination at the rate in effect at the time of Notice of
Termination is given or, in the case of the death of Employee,
the Date of Termination, payable at the time such payments are
due; and
(ii) all other amounts to which Employee is
entitled, including, without limitation, expense
reimbursement amounts accrued to the Date of
Termination and amounts under any benefit plan of the
Company, at the time such payments are due.
9. No Continuing Waiver. Any waiver of any breach of
this Agreement shall not be construed to be a continuing waiver or consent to
any subsequent breach on the part of the Company or Employee.
10. Notices. All notices, requests and other communications
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given, if delivered in person or by courier, telex or by facsimile
transmission or sent by registered, express or certified mail, postage prepaid,
addressed as follows.
If to Employee: Marc G. Langlois
5717 N. Camino Arturo
Tucson, Arizona 85718
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<PAGE>
If to the Company: Catalina Coatings, Inc.
2555 N. Coyote Drive
Tucson, Arizona 85745
Any party may, by written notice to the other, change the address to which
notices to such party are to be delivered or mailed.
11. Assignment. Neither party hereto may assign his or its
rights or delegate his or its duties under this Agreement without the prior
written consent of the other party.
12. Severability. To the extent any provision of this
Agreement shall be invalid or unenforceable, it shall be considered deleted from
this Agreement and the remainder of such provision and of this Agreement shall
be unaffected and shall continue in full force and effect.
13. Applicable Law and General. The terms and provisions of
this Agreement shall be construed and enforced in accordance with the laws of
the State of Arizona shall constitute the entire agreement by the Company and
Employee with respect to the subject matter hereof, and shall supersede any and
all prior agreements or understandings between the parties, whether written or
oral. This Agreement may be amended or modified only by written instrument
executed by the parties.
14. Interpretation. Any issues regarding construction or
interpretation of this Agreement shall be resolved without consideration of the
identity of the drafting party.
15. Headings. The headings contained in this Agreement are
solely for convenience of reference and shall not limit or affect the meaning
construction or interpretation of any of the terms or provisions of this
Agreement.
-8-
<PAGE>
16. Attorney's Fees. In the event of litigation over the terms
of this Agreement, the prevailing party shall be entitled to an award of
reasonable attorney's fees and costs.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
CATALINA COATINGS, INC., an Arizona
corporation
By: /s/ David G. Shaw
------------------------------------
Name: David G. Shaw
Title: President
/s/ Marc G. Langlois
------------------------------------
Marc G. Langlois
-9-
<PAGE>
NON-QUALIFIED STOCK OPTION AGREEMENT
PRESSTEK, INC.
AGREEMENT made as of this 15th day of February, 1996 (the
"Grant Date") between Presstek, Inc. (the "Company"), a Delaware corporation,
having a principal place of business in Hudson, New Hampshire, and David G. Shaw
(the "Grantee") residing at 1041 E. Calle Mariposa, Tucson, Arizona 85718.
WHEREAS, the Company desires to grant to the Grantee an
Incentive Stock Option to purchase shares of its common stock of a par value of
$.01 a share, under and for the purposes of the 1994 Stock Option Plan of the
Company (the "Plan") pursuant to the terms thereof;
WHEREAS, the Company and the Grantee understand and agree that
unless otherwise defined herein any terms used herein have the same meanings as
in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Grantee
the right and option to purchase all or any part of an aggregate of 47,500
shares of its Common Stock, $.01 par value (the "Option Shares"), on the terms
and conditions and subject to all the limitations set forth herein and in the
Plan, which is incorporated herein by reference. The Grantee acknowledges
receipt of a copy of the Plan.
<PAGE>
2. Purchase Price. The purchase price of the Option Shares
covered by the Option shall be $89.50 per share.
3. Exercise of Option. The Option granted hereby may be
exercised cumulatively on each of the first, second, third and fourth
anniversaries of the Grant Date as to 25%, 50%, 75% and 100% of the Option
Shares, subject to the prior exercise of any portion of the Option Shares.
4. Term of Option. The option shall terminate five (5) years
from the date of this Agreement, but shall be subject to earlier termination as
provided herein or in the Plan.
If the Grantee ceases to be employed by the Company or a
subsidiary thereof for any reason other than death, Disability, termination for
cause or voluntary termination without the consent of the Company, the Option
may be exercised within thirty (30) days after the date the Grantee ceases to be
an employee, or within five (5) years from the granting of the Option, whichever
is earlier, but may not be exercised thereafter. In such event, the Option shall
be exercisable only to the extent that the right to purchase Option Shares under
the Plan has accrued and is in effect at the date of such cessation of
employment.
In the event the Grantee's employment is terminated by the
Company or a subsidiary thereof for "cause" (as defined in the Plan), or
voluntarily by the Grantee without the consent of the Company, the Grantee's
right to exercise any unexercised portion of this Option shall cease forthwith,
and this Option shall thereupon terminate.
-2-
<PAGE>
In the event of Disability of the Grantee (as determined by
the Board of Directors of the Company or the 1994 Stock Option Plan Committee of
the Company, as the case may be, and as to the fact and date of which the
Grantee is notified by the Board or that Committee, as the case may be, in
writing), the Option shall be exercisable within thirty (30) days after the date
of such Disability or, if earlier, the term originally prescribed by this
Agreement. In such event, the Option shall be exercisable to the extent that the
right to purchase the Option Shares hereunder has accrued on the date the
Grantee becomes Disabled and is in effect as of such determination date.
In the event of the death of the Grantee while an employee of
the Company or a subsidiary thereof, within thirty days after the termination of
employment (other than termination for cause or without consent of the Company)
the Option shall be exercisable to the extent exercisable but not exercised as
of the date of death and in such event, the Option must be exercised, if at all,
within one (1) year after the date of death of the Grantee or, if earlier,
within the originally prescribed term of the Option.
5. Non-Assignability. The Option shall not be trans- ferable
by the Grantee otherwise than by will or by the laws of descent and distribution
and shall be exercisable, during the Grantee's lifetime, only by the Grantee.
The Option shall not be assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to execution,
attachment or similar process. Any attempted transfer, assignment, pledge,
-3-
<PAGE>
hypothecation or other disposition of the Option or of any rights granted
hereunder contrary to the provisions of this Section 5, or the levy of any
attachment or similar process upon the Option or such right, shall be null and
void.
6. Exercise of Option and Issue of Option Shares. The Option
may be exercised in whole or in part (to the extent that it is exercisable in
accordance with its terms) by giving written notice to the Company, together
with the tender of the Option price. Such written notice shall be signed by the
person exercising the Option, shall state the number of Option Shares with
respect to which the Option is being exercised, shall contain any warranty
required by Section 7 below and shall otherwise comply with the terms and
conditions of this Agreement and the Plan. The Company shall pay all original
issue taxes with respect to the issue of the Option Shares pursuant hereto and
all other fees and expenses necessarily incurred by the Company in connection
herewith. Except as specifically set forth herein, the holder acknowledges that
any income or other taxes due from him with respect to this Option or the Option
Shares issuable pursuant to this Option shall be the responsibility of the
holder. The holder of this Option shall have rights as a shareholder only with
respect to any Option Shares covered by the Option after due exercise of the
Option and tender of the full exercise price for the Option Shares being
purchased pursuant to such exercise.
7. Purchase for Investment. Unless the offering and sale of
the Option Shares to be issued upon the particular exercise of the Option shall
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<PAGE>
have been effectively registered under the Securities Act of 1933, as now in
force or hereafter amended, or any successor legislation (the "Act"), the
Company shall be under no obligation to issue the Option Shares covered by such
exercise unless and until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall warrant to
the Company, at the time of such exercise, that such person(s) are acquiring
such Option Shares for his or her own account, for investment and not with a
view to, or for sale in connection with, the distribution of any such Option
Shares, in which event the person(s) acquiring such Option Shares shall be bound
by the provisions of the following legend which shall be endorsed upon the
certificate(s) evidencing their Option Shares issued pursuant to such exercise:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). Such shares may not be sold, transferred or otherwise
disposed of unless they have first been registered under the
Act or, unless, in the opinion of counsel satisfactory to the
Company's counsel, such registration is not required."
(b) The Company shall have received an opinion of its
counsel that the Option Shares may be issued upon such particular exercise in
compliance with the Act without registration thereunder. Without limiting the
generality of the foregoing, the Company may delay issuance of the Option Shares
until completion of any action or obtaining of any consent, which the Company
deems necessary under any applicable law (including without limitation state
securities or "blue sky" laws).
-5-
<PAGE>
8. Notices. Any notices required or permitted by the terms
of this Agreement or the Plan shall be given by registered or certified mail,
return receipt requested, addressed as follows:
If to the Company: Presstek, Inc.
8 Commercial Street
Hudson, New Hampshire 03051
Attn: Richard A. Williams
If to the Grantee: David G. Shaw
1041 E. Calle Mariposa
Tucson, Arizona 85718
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given when
mailed in accordance with the foregoing provisions. Either party hereto may
change the address of which notices shall be given by providing the other party
hereto with written notice of such change.
9. Governing Law. This Agreement shall be construed and
enforced in accordance with the law of the State of New Hampshire, except to the
extent the law of the State of Delaware may be applicable.
10. Benefit of Agreement. This Agreement shall be for the
benefit of and shall be binding upon the heirs, executors, administrators and
successors of the parties hereto.
-6-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by Robert E. Verrando, its duly authorized officer, and the Grantee
has hereunto set his hand, all as of the day and year first above written.
PRESSTEK, INC., a Delaware corporation
/s/ Robert E. Verrando
-----------------------------------------
Robert E. Verrando,
Executive Vice-President
/s/ David G. Shaw
-----------------------------------------
David G. Shaw, Grantee
-7-
<PAGE>
NON-QUALIFIED STOCK OPTION AGREEMENT
PRESSTEK, INC.
AGREEMENT made as of this 15th day of February, 1996 (the
"Grant Date") between Presstek, Inc. (the "Company"), a Delaware corporation,
having a principal place of business in Hudson, New Hampshire, and Marc G.
Langlois (the "Grantee") residing at 5717 N. Camino Arturo, Tucson, Arizona
85718.
WHEREAS, the Company desires to grant to the Grantee an
Incentive Stock Option to purchase shares of its common stock of a par value of
$.01 a share, under and for the purposes of the 1994 Stock Option Plan of the
Company (the "Plan") pursuant to the terms thereof;
WHEREAS, the Company and the Grantee understand and agree that
unless otherwise defined herein any terms used herein have the same meanings as
in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Grantee
the right and option to purchase all or any part of an aggregate of 47,500
shares of its Common Stock, $.01 par value (the "Option Shares"), on the terms
and conditions and subject to all the limitations set forth herein and in the
Plan, which is incorporated herein by reference. The Grantee acknowledges
receipt of a copy of the Plan.
<PAGE>
2. Purchase Price. The purchase price of the Option Shares
covered by the Option shall be $89.50 per share.
3. Exercise of Option. The Option granted hereby may be
exercised cumulatively on each of the first, second, third and fourth
anniversaries of the Grant Date as to 25%, 50%, 75% and 100% of the Option
Shares, subject to the prior exercise of any portion of the Option Shares.
4. Term of Option. The option shall terminate five (5) years
from the date of this Agreement, but shall be subject to earlier termination as
provided herein or in the Plan.
If the Grantee ceases to be employed by the Company or a
subsidiary thereof for any reason other than death, Disability, termination for
cause or voluntary termination without the consent of the Company, the Option
may be exercised within thirty (30) days after the date the Grantee ceases to be
an employee, or within five (5) years from the granting of the Option, whichever
is earlier, but may not be exercised thereafter. In such event, the Option shall
be exercisable only to the extent that the right to purchase Option Shares under
the Plan has accrued and is in effect at the date of such cessation of
employment.
In the event the Grantee's employment is terminated by the
Company or a subsidiary thereof for "cause" (as defined in the Plan), or
voluntarily by the Grantee without the consent of the Company, the Grantee's
right to exercise any unexercised portion of this Option shall cease forthwith,
and this Option shall thereupon terminate.
-2-
<PAGE>
In the event of Disability of the Grantee (as determined by
the Board of Directors of the Company or the 1994 Stock Option Plan Committee of
the Company, as the case may be, and as to the fact and date of which the
Grantee is notified by the Board or that Committee, as the case may be, in
writing), the Option shall be exercisable within thirty (30) days after the date
of such Disability or, if earlier, the term originally prescribed by this
Agreement. In such event, the Option shall be exercisable to the extent that the
right to purchase the Option Shares hereunder has accrued on the date the
Grantee becomes Disabled and is in effect as of such determination date.
In the event of the death of the Grantee while an employee of
the Company or a subsidiary thereof, within thirty days after the termination of
employment (other than termination for cause or without consent of the Company)
the Option shall be exercisable to the extent exercisable but not exercised as
of the date of death and in such event, the Option must be exercised, if at all,
within one (1) year after the date of death of the Grantee or, if earlier,
within the originally prescribed term of the Option.
5. Non-Assignability. The Option shall not be trans- ferable
by the Grantee otherwise than by will or by the laws of descent and distribution
and shall be exercisable, during the Grantee's lifetime, only by the Grantee.
The Option shall not be assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to execution,
attachment or similar process. Any attempted transfer, assignment, pledge,
-3-
<PAGE>
hypothecation or other disposition of the Option or of any rights granted
hereunder contrary to the provisions of this Section 5, or the levy of any
attachment or similar process upon the Option or such right, shall be null and
void.
6. Exercise of Option and Issue of Option Shares. The Option
may be exercised in whole or in part (to the extent that it is exercisable in
accordance with its terms) by giving written notice to the Company, together
with the tender of the Option price. Such written notice shall be signed by the
person exercising the Option, shall state the number of Option Shares with
respect to which the Option is being exercised, shall contain any warranty
required by Section 7 below and shall otherwise comply with the terms and
conditions of this Agreement and the Plan. The Company shall pay all original
issue taxes with respect to the issue of the Option Shares pursuant hereto and
all other fees and expenses necessarily incurred by the Company in connection
herewith. Except as specifically set forth herein, the holder acknowledges that
any income or other taxes due from him with respect to this Option or the Option
Shares issuable pursuant to this Option shall be the responsibility of the
holder. The holder of this Option shall have rights as a shareholder only with
respect to any Option Shares covered by the Option after due exercise of the
Option and tender of the full exercise price for the Option Shares being
purchased pursuant to such exercise.
7. Purchase for Investment. Unless the offering and sale of
the Option Shares to be issued upon the particular exercise of the Option shall
-4-
<PAGE>
have been effectively registered under the Securities Act of 1933, as now in
force or hereafter amended, or any successor legislation (the "Act"), the
Company shall be under no obligation to issue the Option Shares covered by such
exercise unless and until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall warrant to
the Company, at the time of such exercise, that such person(s) are acquiring
such Option Shares for his or her own account, for investment and not with a
view to, or for sale in connection with, the distribution of any such Option
Shares, in which event the person(s) acquiring such Option Shares shall be bound
by the provisions of the following legend which shall be endorsed upon the
certificate(s) evidencing their Option Shares issued pursuant to such exercise:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). Such shares may not be sold, transferred or otherwise
disposed of unless they have first been registered under the
Act or, unless, in the opinion of counsel satisfactory to the
Company's counsel, such registration is not required."
(b) The Company shall have received an opinion of its
counsel that the Option Shares may be issued upon such particular exercise in
compliance with the Act without registration thereunder. Without limiting the
generality of the foregoing, the Company may delay issuance of the Option Shares
until completion of any action or obtaining of any consent, which the Company
deems necessary under any applicable law (including without limitation state
securities or "blue sky" laws).
-5-
<PAGE>
8. Notices. Any notices required or permitted by the terms
of this Agreement or the Plan shall be given by registered or certified mail,
return receipt requested, addressed as follows:
If to the Company: Presstek, Inc.
8 Commercial Street
Hudson, NH 03051
Attn: Richard A. Williams
If to the Grantee: Marc G. Langlois
5717 N. Camino Arturo
Tucson, Arizona 85718
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given when
mailed in accordance with the foregoing provisions. Either party hereto may
change the address of which notices shall be given by providing the other party
hereto with written notice of such change.
9. Governing Law. This Agreement shall be construed and
enforced in accordance with the law of the State of New Hampshire, except to the
extent the law of the State of Delaware may be applicable.
10. Benefit of Agreement. This Agreement shall be for the
benefit of and shall be binding upon the heirs, executors, administrators and
successors of the parties hereto.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by Robert E. Verrando, its duly authorized officer, and the Grantee
has hereunto set his hand, all as of the day and year first above written.
PRESSTEK, INC., a Delaware corporation
/s/ Robert E. Verrando
-------------------------------------------
Robert E. Verrando,
Executive Vice President
/s/ Marc G. Langlois
-------------------------------------------
Marc G. Langlois, Grantee
-7-
<PAGE>
NON-QUALIFIED STOCK OPTION AGREEMENT
PRESSTEK, INC.
AGREEMENT made as of this 15th day of February, 1996 (the
"Grant Date") between Presstek, Inc. (the "Company"), a Delaware corporation,
having a principal place of business in Hudson, New Hampshire, and John E.
Madocks (the "Grantee") residing at 110 E. Yvon Drive, Tucson, Arizona 85704.
WHEREAS, the Company desires to grant to the Grantee an
Incentive Stock Option to purchase shares of its common stock of a par value of
$.01 a share, under and for the purposes of the 1994 Stock Option Plan of the
Company (the "Plan") pursuant to the terms thereof;
WHEREAS, the Company and the Grantee understand and agree that
unless otherwise defined herein any terms used herein have the same meanings as
in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Grantee
the right and option to purchase all or any part of an aggregate of 5,000 shares
of its Common Stock, $.01 par value (the "Option Shares"), on the terms and
conditions and subject to all the limitations set forth herein and in the Plan,
which is incorporated herein by reference. The Grantee acknowledges receipt of a
copy of the Plan.
<PAGE>
2. Purchase Price. The purchase price of the Option Shares
covered by the Option shall be $89.50 per share.
3. Exercise of Option. The Option granted hereby may be
exercised cumulatively on each of the first, second, third and fourth
anniversaries of the Grant Date as to 25%, 50%, 75% and 100% of the Option
Shares, subject to the prior exercise of any portion of the Option Shares.
4. Term of Option. The option shall terminate five (5) years
from the date of this Agreement, but shall be subject to earlier termination as
provided herein or in the Plan.
If the Grantee ceases to be employed by the Company or a
subsidiary thereof for any reason other than death, Disability, termination for
cause or voluntary termination without the consent of the Company, the Option
may be exercised within thirty (30) days after the date the Grantee ceases to be
an employee, or within five (5) years from the granting of the Option, whichever
is earlier, but may not be exercised thereafter. In such event, the Option shall
be exercisable only to the extent that the right to purchase Option Shares under
the Plan has accrued and is in effect at the date of such cessation of
employment.
In the event the Grantee's employment is terminated by the
Company or a subsidiary thereof for "cause" (as defined in the Plan), or
voluntarily by the Grantee without the consent of the Company, the Grantee's
right to exercise any unexercised portion of this Option shall cease forthwith,
and this Option shall thereupon terminate.
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<PAGE>
In the event of Disability of the Grantee (as determined by
the Board of Directors of the Company or the 1994 Stock Option Plan Committee of
the Company, as the case may be, and as to the fact and date of which the
Grantee is notified by the Board or that Committee, as the case may be, in
writing), the Option shall be exercisable within thirty (30) days after the date
of such Disability or, if earlier, the term originally prescribed by this
Agreement. In such event, the Option shall be exercisable to the extent that the
right to purchase the Option Shares hereunder has accrued on the date the
Grantee becomes Disabled and is in effect as of such determination date.
In the event of the death of the Grantee while an employee of
the Company or a subsidiary thereof, within thirty days after the termination of
employment (other than termination for cause or without consent of the Company)
the Option shall be exercisable to the extent exercisable but not exercised as
of the date of death and in such event, the Option must be exercised, if at all,
within one (1) year after the date of death of the Grantee or, if earlier,
within the originally prescribed term of the Option.
5. Non-Assignability. The Option shall not be transferable
by the Grantee otherwise than by will or by the laws of descent and distribution
and shall be exercisable, during the Grantee's lifetime, only by the Grantee.
The Option shall not be assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to execution,
attachment or similar process. Any attempted transfer, assignment, pledge,
-3-
<PAGE>
hypothecation or other disposition of the Option or of any rights granted
hereunder contrary to the provisions of this Section 5, or the levy of any
attachment or similar process upon the Option or such right, shall be null and
void.
6. Exercise of Option and Issue of Option Shares. The Option
may be exercised in whole or in part (to the extent that it is exercisable in
accordance with its terms) by giving written notice to the Company, together
with the tender of the Option price. Such written notice shall be signed by the
person exercising the Option, shall state the number of Option Shares with
respect to which the Option is being exercised, shall contain any warranty
required by Section 7 below and shall otherwise comply with the terms and
conditions of this Agreement and the Plan. The Company shall pay all original
issue taxes with respect to the issue of the Option Shares pursuant hereto and
all other fees and expenses necessarily incurred by the Company in connection
herewith. Except as specifically set forth herein, the holder acknowledges that
any income or other taxes due from him with respect to this Option or the Option
Shares issuable pursuant to this Option shall be the responsibility of the
holder. The holder of this Option shall have rights as a shareholder only with
respect to any Option Shares covered by the Option after due exercise of the
Option and tender of the full exercise price for the Option Shares being
purchased pursuant to such exercise.
7. Purchase for Investment. Unless the offering and sale of
the Option Shares to be issued upon the particular exercise of the Option shall
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<PAGE>
have been effectively registered under the Securities Act of 1933, as now in
force or hereafter amended, or any successor legislation (the "Act"), the
Company shall be under no obligation to issue the Option Shares covered by such
exercise unless and until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall warrant to
the Company, at the time of such exercise, that such person(s) are acquiring
such Option Shares for his or her own account, for investment and not with a
view to, or for sale in connection with, the distribution of any such Option
Shares, in which event the person(s) acquiring such Option Shares shall be bound
by the provisions of the following legend which shall be endorsed upon the
certificate(s) evidencing their Option Shares issued pursuant to such exercise:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). Such shares may not be sold, transferred or otherwise
disposed of unless they have first been registered under the
Act or, unless, in the opinion of counsel satisfactory to the
Company's counsel, such registration is not required."
(b) The Company shall have received an opinion of its
counsel that the Option Shares may be issued upon such particular exercise in
compliance with the Act without registration thereunder. Without limiting the
generality of the foregoing, the Company may delay issuance of the Option Shares
until completion of any action or obtaining of any consent, which the Company
deems necessary under any applicable law (including without limitation state
securities or "blue sky" laws).
-5-
<PAGE>
8. Notices. Any notices required or permitted by the terms
of this Agreement or the Plan shall be given by registered or certified mail,
return receipt requested, addressed as follows:
If to the Company: Presstek, Inc.
8 Commercial Street
Hudson, New Hampshire 03051
Attn: Richard A. Williams
If to the Grantee: John E. Madocks
110 E. Yvon Drive
Tucson, Arizona 85704
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given when
mailed in accordance with the foregoing provisions. Either party hereto may
change the address of which notices shall be given by providing the other party
hereto with written notice of such change.
9. Governing Law. This Agreement shall be construed and
enforced in accordance with the law of the State of New Hampshire, except to the
extent the law of the State of Delaware may be applicable.
10. Benefit of Agreement. This Agreement shall be for the
benefit of and shall be binding upon the heirs, executors, administrators and
successors of the parties hereto.
-6-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by Robert E. Verrando, its duly authorized officer, and the Grantee
has hereunto set his hand, all as of the day and year first above written.
PRESSTEK, INC., a Delaware corporation
/s/ Robert E. Verrando
--------------------------------------------
Robert E. Verrando,
Executive Vice-President
/s/ John E. Madocks
--------------------------------------------
John E. Madocks, Grantee
-7-
<PAGE>
SPECIAL OPTION AGREEMENT
AGREEMENT, dated as of the 15th day of February, 1996, by and
among Catalina Coatings, Inc., an Arizona corporation ("Catalina"); David G.
Shaw ("Shaw"), Marc G. Langlois ("Langlois") and John E. Madocks ("Madocks")
(collectively, the "Grantees") and Presstek, Inc., a Delaware corporation
("Presstek").
W I T N E S S E T H :
WHEREAS, Catalina is willing to grant the Grantees the right
collectively to purchase that number of shares of common stock of Catalina which
upon issuance thereof shall equal five (5%) percent of the issued and
outstanding shares of common stock of Catalina (the "Option Shares"), and the
Grantees desire to acquire the right to purchase the Option Shares upon and
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Grant of Options. Catalina hereby grants to each Grantee
the right (individually, the "Option" and collectively, the "Options") to
acquire the percent of Option Shares listed on Exhibit A hereto opposite the
name of the respective Grantee, at the initial exercise price which the Board of
Directors of Catalina may grant to its employees, members of the Board of
Directors and other persons in a private placement prior to an initial public
<PAGE>
offering (the "IPO") of Catalina's common stock (the "Exercise Price");
provided, however, that the foregoing grant shall cease and be without effect
unless a registration statement under the Securities Act of 1933, as amended,
relating to an initial public offering of common stock of Catalina is declared
effective by the Securities and Exchange Commission not later than 5:00 P.M.,
Eastern Standard Time, on the fourth anniversary from the date hereof.
2. Exercise; Term. The Options may be exercised at any time
commencing upon the Registration Statement for the IPO's becoming effective (the
"Effective Date") until the fifth anniversary of the Effective Date at which
anniversary the Options shall terminate (the "Term"); notwithstanding the
foregoing, the Options shall be subject to earlier termination as provided
below.
An Option shall terminate prior to the expiration of the Term
upon termination of such Grantee's employment pursuant to the terms of the
Employment Agreement between the respective Grantee and Catalina of even date
herewith.
3. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or made as of the date delivered if delivered personally, or received
if sent by overnight courier or if mailed by registered or certified mail,
postage prepaid, return receipt requested, as follows:
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<PAGE>
If to Grantees: David G. Shaw
1041 E. Calle Mariposa
Tucson, Arizona 85718
Marc G. Langlois
5717 N. Camino Arturo
Tucson, Arizona 85718
John E. Madocks
110 E. Yvon Drive
Tucson, Arizona 85704
Copy to: Chandler, Tullar, Udall & Redhair
33 N. Stone Avenue, Suite 1700
Tucson, Arizona 85701-1415
Attn: Joe F. Tarver
If to Presstek: Presstek, Inc.
8 Commercial Street
Hudson, New Hampshire 03051
Attn: Richard A. Williams
Copy to: Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attn: Gary A. Schonwald, Esq.
or to such other address as any party shall have designated by like notice to
the other party hereto.
4. Amendment. This Agreement may only be amended by a written
instrument executed by each of the parties hereto.
5. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
6. Applicable Law. This Agreement shall be governed by the
laws of the State of New Hampshire applicable to contracts made and to be wholly
performed therein, without giving effect to principles of conflicts of laws.
-3-
<PAGE>
7. Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
8. Assignment. Neither this Agreement nor any rights,
interests or obligations hereunder may be assigned (by operation of law or
otherwise) by any party hereto without the prior written consent of all of the
parties hereto, except that this Agreement may be assigned to a subsidiary or
parent of Presstek without the need for such prior consent. Notwithstanding the
foregoing, the Selling Shareholders and Madocks may assign their rights and
obligations under this Agreement to a trust or trusts in which they or their
family members or their estate, or any combination thereof, is the beneficiary,
and additionally, in the case of Langlois, in which case Craig Mathis is a
beneficiary.
9. Binding Effect; Benefits. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto and their respective
heirs, legal representatives, successors and permitted assigns. Nothing herein
contained, express or implied, is intended to confer upon any person other than
the parties hereto and their respective heirs, legal representatives, successors
and permitted assigns, any rights or remedies under or by reason of this
Agreement.
10. Waiver, etc. The failure of any of the parties hereto to
at any time enforce any of the provisions of this Agreement shall not be deemed
or construed to be a waiver of any such provision, nor to in any way affect the
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<PAGE>
validity of this Agreement or any provision hereof or the right of either of the
parties hereto to thereafter enforce each and every provision of this Agreement.
No waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no
waiver of any such breach shall be construed or deemed to be a waiver of any
other or subsequent breach.
11. Severability. Any provision of this Agreement which is
held by a court of competent jurisdiction to be prohibited or unenforceable in
any jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the
extent of such prohibition or unenforceability without invalidating the
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<PAGE>
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
PRESSTEK, INC., a Delaware corporation
By:/s/ Robert Howard
--------------------------------------
Name: Robert Howard
Title: Chairman
CATALINA COATINGS, INC., an Arizona
corporation
By:/s/ David G. Shaw
--------------------------------------
Name: David G. Shaw
Title: President
/s/ Marc G. Langlois
--------------------------------------
Marc G. Langlois
/s/ David G. Shaw
--------------------------------------
David G. Shaw
/s/ John E. Madocks
--------------------------------------
John E. Madocks
<PAGE>
EXHIBIT A
Selling Shareholder Percentage of Option Shares
- ------------------- Selling Shareholder is
entitled to receive upon
Exercise of Option
---------------------------
David G. Shaw 47.5 (2.375% of whole)
Marc Langlois 47.5 (2.375% of whole)
John Madocks 5.0 (0.250% of whole)
---- -----------------
Total 100.0 (5.000% of whole)
