AGREEMENT, entered into as of the 8th day of January 2002 between
Imagistics International Inc., a Delaware corporation ("Company") and Nathaniel
M. Gifford, currently residing at 25 Skating Pond Road, Trumbull, Connecticut
WHEREAS, the Company desires to employ Executive as its Vice President,
Product Development and Marketing upon the terms and conditions set forth herein
and Executive is willing to be so employed;
NOW, THEREFORE, in consideration of the promises and the agreements
contained herein, the Company and Executive hereby agree as follows:
1. Term of Employment. Company shall employ Executive under this Agreement,
and Executive hereby accepts such employment, for the period commencing on the
date hereof (the "Effective Date") and ending on the third anniversary hereof,
unless Executive is given notice by Company of its intention to extend or renew
the term of this Agreement within 120 days of the expiration of the initial
term, or unless the Agreement is terminated sooner in accordance with the
provisions of Section 7. The initial term and any renewal term shall be referred
to as the "Term of Employment".
2. Position and Duties. During the Term of Employment:
(A) Executive shall serve as Vice President, Product Development and
Marketing for the Company, and shall have such authority and duties (the
"Duties") as may be assigned to him from time to time by the Chief Executive
Officer of the Company (the "CEO"), commensurate with such position and title.
Executive shall report solely and directly to the CEO.
(B) Executive will devote all of his business time and attention to the
business of the Company in performing such Duties and promoting the interests
and goodwill of the Company.
(C) Executive may serve on corporate, civic or charitable boards or
committees, deliver lectures, fulfill speaking engagements, teach at educational
institutions or manage personal investments, provided in each case that such
activities do not individually or in the aggregate interfere with the
performance of his Duties under this Agreement.
3. Base Salary. Commencing as of the Effective Date, the Company shall pay
Executive an annualized salary of Two Hundred Twenty Five Thousand Dollars
($225,000.00) (the "Base Salary") in accordance with its regular payroll
practices, subject to applicable tax withholding. Base Salary shall be reviewed
at least annually for increase in the discretion of the Board of Directors of
the Company (the "Board") after consultation with the CEO. Base Salary, as
adjusted, shall be considered the new Base Salary for all purposes of this
Agreement and shall not thereafter be reduced.
4. Annual Cash Incentive. Executive shall be eligible for an annual
performance cash bonus ("Annual Bonus") in accordance with the terms of the
Company's Key Employees' Incentive Plan, as it may be amended or restated from
time to time ("KEIP"). With respect to each fiscal year ending during the Term
of Employment, such Annual Bonus shall range from 0% to 70%
of the Executive's then Base Salary (70% being the "Maximum Annual Bonus"), with
a target equal to 35% of the Executive's then Base Salary (the "Target Annual
Bonus"), based on both the individual performance of the Executive and the
Company's performance all as determined by the Committee in its discretion. To
the extent earned, Executive shall be paid his Annual Bonus at the same time
that other senior-level executives receive their awards.
5. Long-term Incentives.
(A) Option Grant. As an inducement to Executive to enter into this
Agreement, Company shall grant to Executive, as of the date upon which initial
grants are made to other senior executives of the Company (the "Initial Grant
Date"), an Option to purchase shares of Common Stock in an amount to be
determined by the Board (the "Initial Option") in accordance with the terms of
the Company's 2001 Stock Plan, as it may be amended or restated from time to
time (the "Stock Plan"). Such Options shall vest in thirds upon each of the
first three anniversary dates of the Initial Grant Date, and shall be fully
vested upon Executive's death, Disability or a Change of Control. Although
Company and Executive intend the Initial Option to be in lieu of normal annual
or other option grants through the end of 2004, the Committee may at any time in
its discretion consider Executive for possible future annual or other grants of
Options (such Options, collectively, the "Subsequent Options") and, commencing
in 2005, shall at least once during each year consider Executive for a grant of
a Subsequent Option. The terms of the Initial, and any Subsequent, Option grant
shall be set forth in written option agreement between Company and Executive.
B) Restricted Stock Award. As of the Initial Grant Date, Company shall
grant Executive shares of restricted Common Stock in an amount to be determined
by the Board ("Restricted Stock"), in accordance with the terms of the Stock
Plan. Such Restricted Stock shall, subject to Executive's continued employment
by the Company, vest in its entirety on the third anniversary of the Initial
Grant Date and shall be fully vested upon a Change of Control. Executive shall
have the right to vote, and receive all dividends payable in respect of, the
Restricted Stock unless and until such Stock is forfeited.
(C) Long-term Incentive Award. Executive shall be entitled to participate
in the Company's Key Employees' Incentive Plan, with a target award opportunity,
maximum award opportunity, and multi-year performance goals all to be
established by the Committee in its discretion.
6. Other Benefits.
(A) Savings and Retirement Plans; Other Executive Compensation Plans.
During the Term of Employment, Executive shall be entitled to participate in all
qualified and non-qualified savings and retirement plans, and all other
compensation and benefit plans and programs that are generally available to
other senior executives of the Company.
(B) Welfare and Fringe Benefits. During the Term of Employment, Executive
shall be eligible to participate in all welfare and fringe benefit programs
generally available to Company's senior executives.
(C) Expenses. Company shall promptly reimburse Executive for reasonable
business-related expenses he incurs in executing his Duties hereunder that are
documented in accordance with Company policies.
(D) Vacation. Executive shall receive 4 weeks paid vacation, in accordance
with the policies applicable to senior executives of the Company, including any
policy relating to accumulation and cash-out of unused vacation.
(A) Due to Executive's Death or Disability. If Executive's employment
terminates during the Term of Employment due to his death or Disability, Company
shall provide Executive, his estate or beneficiaries, as applicable, with: (i)
continuation of Base Salary for three (3) full months following the month
containing Executive's Termination Date; (ii) a Pro-rata Annual Bonus; (iii) the
right to exercise each outstanding Initial and Subsequent Option for a period of
12 months, all such options to be deemed fully vested and exercisable as of the
date of his Termination Date;(iv) payment of the Restricted Stock that has, or
would have, vested within 12 months of termination due to death or Disability;
(v) such benefits as Executive may be entitled to under any applicable employee
benefit plan or program of the Company including, without limitation, immediate
vesting under any qualified or non-qualified retirement or savings plan, and
continued participation in any welfare benefit plan, but only to the extent
provided under the terms of any plan or policy applicable to senior executive
employees; and (vi) any other entitlements described in Section 7(E).
(B) By Company for Cause; or By Executive for other than Good Reason. If
Executive's employment is terminated by Company for Cause, or Executive
voluntary terminates service other than for Good Reason, death, or Disability,
Company shall provide Executive with: (i) any accrued, but unpaid, Base Salary
through the Termination Date; (ii) 30 days to exercise any Options then
exercisable on the Termination Date; and (iii) any entitlements described in
Section 7(E). Executive shall not be entitled to any Severance under this
Agreement or under any severance program applicable to employees of the Company,
or any other benefits hereunder, and shall forfeit all unvested Restricted Stock
and any other equity compensation to the extent not then vested or exercisable.
Company may not terminate Executive's employment for Cause unless Company
gives written notice (the "Termination Notice") to Executive of its intent to
terminate him for Cause, stating in detail the specific reasons that form the
basis for the proposed Termination for Cause. Except for a Termination for Cause
pursuant to Section 13(i) or (ii), which will be effective on the date set forth
in the Termination Notice, Executive shall have at least 30 days after the
Termination Notice is provided to rectify the situation providing grounds for
Termination with Cause. If he fails to do so to the satisfaction of the CEO
within such 30-day period, Executive shall be terminated for Cause.
(C) By the Company Without "Cause"; or By the Executive For Good Reason. If
Executive's employment is terminated by Company without Cause, other than for
death or Disability, or Executive terminates for Good Reason, and such
termination is not in either case in connection with a Change of Control,
Company shall provide Executive with: (i) continuation of Base Salary for a
12-month period, plus Executive's Target Annual Bonus pro-rated for the portion
of the current year during which Executive was actively employed; (ii) the right
to exercise each outstanding Initial and Subsequent Option for the ninety (90)
day period following the Termination Date to the extent that such Options would
be, or become, vested and exercisable during such Period; (iii) payment of the
Restricted Stock that would have vested within ninety (90) day period following
the Termination Date; (iv) the continuation for the Severance Period of the
benefits specified in Sections 6(A) and (B) to which Executive is entitled as of
the Termination Date (or, if such benefits are not available, or cannot be
provided due to applicable law, a lump sum amount equal to the after-tax
equivalent thereof; provided that with respect to any benefit to be provided on
an insured basis, such value shall be the present value of the premiums expected
to be paid for such coverage, and with respect to other benefits, such value
shall be the present value of the expected net cost to the Company of providing
such benefits); and (v) the entitlements described in Section 7(E). No
termination by Company without Cause shall be effective unless Company shall
have provided Executive with at least 45 days advance written notice. A failure
to renew this Agreement at the expiration of the Executive's Term of Employment
upon terms at least as favorable to the Executive as contained herein shall not
be considered a termination by the Company Without Cause.
(D) Termination In Connection with a Change in Control. If Executive's
employment is terminated by Company without Cause, other than for death or
Disability, or Executive terminates for Good Reason, and in each case such
termination occurs within two (2) years following a Change in Control, Company
shall provide Executive with: (i) a lump sum amount in immediately available
funds equal to two times the Executive's annualized Base Salary, plus two times
the Executive's full Maximum Annual Bonus for the year in which the Termination
Date occurs; (ii) immediate vesting in, and the right to exercise, each
outstanding Initial and Subsequent Option for the Severance Period following the
Termination Date; (iii) immediate vesting and payment of Restricted Stock as of
the Termination Date; (iv) the continuation for the Severance Period of the
benefits specified in Sections 6(A) and (B) to which Executive is entitled as of
the Date of Termination (or, if such benefits are not available, or cannot be
provided due to applicable law, a lump sum amount equal to the after-tax
economic equivalent thereof; provided that with respect to any benefit to be
provided on an insured basis, such value shall be the present value of the
premiums expected to be paid for such coverage, and with respect to other
benefits, such value shall be the present value of the expected net cost to the
Company of providing such benefits); (v) immediate vesting in the Company's
qualified and non-qualified deferred compensation plans, provided that in the
event that full vesting is not permitted with respect to any qualified plan, the
Executive shall be paid a lump sum amount in immediately available funds equal
to the total amount (if any) of Executive's unvested benefits which are
forfeited on account of Executive's Termination of Employment; and (vi) the
entitlements described in Section 7(E).
(E) Other Termination Benefits; No Mitigation Required. In addition to any
amounts or benefits payable under this Section 7, Executive shall be entitled
(i) to payment of his Base Salary through the Termination Date; (ii) any
payments or benefits provided under the terms of any Company benefit plan,
program or policy, or as required by applicable law, and (iii) prompt payment,
when due, of all amounts owing under the Agreement. Any COBRA rights that
Executive (or any other qualified beneficiary) has shall run concurrently with
the health insurance benefit continuation provisions otherwise applicable in
this Section 7. The Company agrees that Executive is not required to seek other
employment, or to mitigate the amounts payable under this Agreement. No
compensation earned from subsequent employment will reduce any amount payable
hereunder. However, Executive shall notify Company, within 30 days, of becoming
covered under another group health plan of a subsequent employer, and the health
benefit coverage provided hereunder will become secondary to any such coverage
provided by another employer.
8. Excise Tax Gross-Up. If any payment to Executive pursuant to this
Agreement or any other payment or benefit from the Company, any Affiliate, any
shareholder of the Company or any other person is determined to be subject to
the excise tax imposed by Section 4999 of the Code or any similar tax payable
under any United States federal, state, local or other law (the "Excise Tax"),
then Executive shall receive a Tax Gross-Up Payment with respect to all such
excise taxes and similar taxes. The "Tax Gross-Up Payment" shall mean an amount
payable to the Executive such that, after payment of all federal, state and
local taxes on such Tax Gross-Up Payment, there remains
a balance sufficient to pay the Excise Tax being reimbursed. The Company's
outside auditor (the "Auditor") shall determine whether any payment under this
Agreement is subject to an Excise Tax and, if so, the amount and timing of the
Tax Gross-Up Payment.
9. Non-Compete; Non-Solicitation; Confidentiality and Non-Disparagement.
Executive agrees that:
(A) Non-compete and Non-solicitation. At no time during the Term of
Employment, nor during Severance Period following Executive's Termination Date,
(i) become employed by, enter into a consulting arrangement with, or
otherwise agree to perform personal services for a Competitor;
(ii) manage, acquire an ownership interest in, participate in the
management or ownership of, or otherwise be connected in any material
manner with a Competitor, provided, however that nothing herein shall
prevent Executive from acquiring up to 5% of any class of outstanding
equity securities of any company whose equity securities are regularly
traded on a national securities exchange or in an "over-the-counter
(iii) directly or indirectly employ, or seek to employ or secure the
services in any capacity of, any person employed at that time by Company or
any of its Affiliates, or otherwise encourage or entice any such person to
leave such employment;
(iv) solicit any customers or vendors of Company on behalf of, or for
the benefit of a Competitor.
(B) Non-disclosure. At no time during the Term of Employment, nor
thereafter, will Executive, without prior written consent of Company, divulge,
disclose or make accessible to any person or entity any confidential non-public
document or information concerning the business or affairs of the Company that
he has acquired in the course of his employment hereunder, except (i) to the
Company or to any authorized (or apparently authorized) agent or representative
of Company, (ii) in connection with performing his Duties under this Agreement,
or (iii) when required to do so by law or by legal process. These restrictions
shall not apply to any document or information (i) that has previously been
disclosed to the public, or is in the public domain, other than as a result of
the Executive's breach of this covenant or (ii) is known or generally available
within any trade or industry of Company.
(C) Non-disparagement. At no time during the Term of Employment, nor
thereafter, will Executive knowingly make any written or oral statement that
disparages Company or its Affiliates in communications with any customer,
client, or the public.
Executive acknowledges that the restraints of this Section 9 are reasonable and
that monetary damages would not provide an adequate remedy for the Company in
the event of a breach of this Section. Executive thus agrees that Company is
entitled to an injunction preventing such breach, in addition to any other legal
remedies Company may have. Further, if a court with jurisdiction determines that
any restraint contained in this Section is unenforceable, then the provisions of
this Section shall be deemed amended to the extent necessary to render them
10. Cooperation. Following his Termination Date, Executive will cooperate
with, and assist, the Company to ensure a smooth transition in management and,
if requested by Company, will
make himself available to consult during regular business hours at mutually
agreed upon times for up to a 3 month period thereafter. At any time following
his Termination Date, Executive will provide such information as Company may
reasonably request with respect to any Company-related transaction or other
matter in which the Executive was involved in any way while employed by Company.
Executive further agrees, during the Term of his Employment and thereafter, he
will assist and cooperate with Company in connection with the defense or
prosecution of any claim that may be made against, or by, Company or its
Affiliates, in connection with any dispute or claim of any kind involving
Company or its Affiliates, including providing testimony in any proceeding
before any arbitral, administrative, judicial, legislative or other body or
agency. Executive shall be entitled to reimbursement for all properly documented
expenses incurred in connection with rendering services under this Section,
including, but not limited to, reimbursement for all reasonable travel, lodging,
meal expenses, and legal fees, and Executive shall be entitled to a per diem
amount for his services equal to his then most recent annualized Base Salary
under this Agreement, divided by 240 (business days).
11. Indemnification; D&O Insurance.
(A) Indemnification. Company shall, to the fullest extent legally permitted
or authorized by the Company's Articles of Incorporation, By-laws or Board
resolutions or by the laws of the State of Delaware, indemnify Executive against
any judgements, fines, penalties, settlement amounts and reasonable costs and
expenses actually incurred (including legal fees) if he is made a party, or is
threatened to be made a party, to any proceeding (i) by reason of the fact that
he is or was an officer, director, officer, employee, or agent of Company or its
Affiliates or (ii) if any claim is made or threatened relating to Executive's
service hereunder or in any of the foregoing capacities. Company shall advance
to Executive all costs and expenses incurred by him in connection with any such
proceeding or claim within 20 days after receiving written notice requesting
such an advance. Such notice shall include, to the extent required by applicable
law, an undertaking by Executive to repay the amount advanced if he ultimately
is determined not to be entitled to indemnification against such costs and
(B) D&O Insurance. During the Term of Employment and for a period of six
years thereafter, the Company, or any successor to the Company resulting from a
Change of Control, shall keep in place a directors' and officers' liability
insurance policy (or policies) providing comprehensive coverage to Executive to
the extent that Company provides such coverage for any other senior executive or
(A) Arbitration. The parties agree to submit any and all disputes arising
from or relating to this Agreement to arbitration in Connecticut (including,
without limitation, disputes under Title VII, the ADEA, the ADA and analogous
State laws) in accordance with the American Arbitration Association's National
Rules for Resolution of Employment Disputes. The determination of the
arbitrator(s) will be conclusive and binding on Company and Executive, and
judgment upon the award rendered may be entered by a court with jurisdiction.
The Company will pay the expenses of such arbitration (e.g., filing fees and the
cost of the arbitrator), and each party will separately pay for their counsel
fees. Notwithstanding the foregoing, however, in the event that Executive is the
prevailing party, Company shall reimburse Executive his reasonable expenses
including, without limitation, attorneys' fees, fees and expenses payable to
witnesses, and transcription costs.
(B) Release. The payments provided in Section 7(C) and (D) are intended as
enhanced severance for a termination by the Company without Cause, or a
Termination by the Executive for Good Reason. As a condition of receiving such
payments, Executive shall first execute and deliver a general release of all
claims against Company, its Affiliates, agents and employees (other than any
claims or rights pursuant to employment agreement, or equity and employee
benefit plans) in form and substance satisfactory to Company.
(C) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Connecticut, without reference to principles of
conflict of law.
(D) Entire Agreement. This Agreement contains the entire understanding and
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings and negotiations with respect
thereto, whether written or oral.
(E) Tax Withholding. Company may withhold such federal, state and local
taxes from any amounts payable hereunder as may be required to be withheld under
applicable law or regulation. In the case of Options and Restricted Stock,
Executive may pay such withholding tax obligations pursuant to any method
permitted under the terms of Company's Stock Plan.
(F) Severability. If any provision or portion of this Agreement is
determined to be invalid or unenforceable, the remaining provisions of the
Agreement shall remain in force, and shall be construed in a manner so as to
effect the purposes of this Agreement to the fullest extent permitted by law.
(G) Amendment; Waiver. This Agreement may be amended only in a writing
signed by both parties. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
of such party's rights or deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(H) Assignment; Successors. Company may not assign its rights and
obligations under this Agreement without the prior written consent of Executive
except to a successor of Company's business which expressly assumes Company's
obligations hereunder in writing. In the event of any sale of assets or
liquidation of the Company, the Company shall use its best efforts to cause such
assignee or transferee to expressly assume this Agreement. This Agreement shall
be binding upon and inure to the benefit of Executive, his estate and
beneficiaries, Company and the successors and permitted assigns of Company.
Executive may not assign, transfer, alienate or encumber any rights or
obligations under this Agreement, except by will or operation of law, and
provided that he may designate beneficiaries to receive any payments permitted
under the terms of Company's benefit plans.
(I) Beneficiaries. If Executive dies after having become entitled to any
payments under this Agreement and prior to having received all amounts owed, any
amounts remaining unpaid at his death shall be paid to his designated
beneficiary or, if none is designated, to his estate.
(J) Captions. Captions and headings in this Agreement are for convenience
of reference only and do not constitute a part of the Agreement.
(K) Notices. All notices shall be in writing and deliver by hand, by
nationally-recognized delivery service that guarantees overnight delivery, or by
prepaid registered or certified mail, addresses as follows:
If to the Company: Imagistics International Inc.
100 Oakview Drive
Trumbull, CT 06611
Attn: Chairman and CEO
Facsimile #: 203-365-7497
If to the Executive: Nathaniel M. Gifford
25 Skating Pond Road
Trumbull, Connecticut 06611
(with a copy to the Executive at the Company's address)
(A) "Affiliate" means (i) any entity that, directly or indirectly controls,
is controlled by, or is under common control with, the Company, or (ii) any
entity in which the Company has a significant equity interest, as determined by
(B) "Cause" means the Executive has: (i) been convicted of a felony or
entered into a plea of nolo contendre with respect thereto, or has been
convicted of a misdemeanor involving an act of dishonesty or moral turpitude;
(ii) committed fraud, embezzlement or other dishonesty or breach of business
ethics against the Company, or breached his duty of loyalty to the Company;
(iii) willfully disobeyed the directions of the Board or the CEO to adhere to
the policies or practices of the Company; or (iv) breached this Agreement in any
material respect, if such breach remains uncured, as provided for in Section
(C) "Change of Control" shall have the same meaning as that given the term
in Company's Stock Plan, as amended from time to time; provided, however, that
(I) if Executive agrees in writing in advance, then no Change of Control shall
be deemed to occur hereunder; and (II) regardless of the definition contained in
the Stock Plan, a Change of Control shall be deemed to occur if the Board, in
its discretion, so determines by a vote of a majority of the then Board members.
(D) "Committee" means the Executive Compensation and Development Committee
of the Board.
(E) "Competitor" means a business that directly, or indirectly competes to
a material extent, whether domestically or internationally, with any line of
business of the Company or its Affiliates that was operated by the Company or
its Affiliates at the Termination Date, or any business identified as of the
Termination Date, for introduction into the marketplace pursuant to the strategy
most recently approved by Company senior management, including, without
limitation, any business engaged in the development, manufacture, or
distribution (including sales, leasing or rental) of copier equipment, facsimile
equipment, or desktop or network printers.
(F) "Disabled" means having been determined to be totally disabled under
the terms of the Company's Long-term Disability Plan.
(G) "Pro-Rata" shall mean a fraction, the numerator of which is the number
of days that the Executive was employed in the applicable performance period (a
fiscal year in the case of an
Annual Bonus) and the denominator of which shall be the number of days in the
applicable performance period.
(H) "Pro-rata Annual Bonus" means (a) the product of the amount of the
Target Annual Bonus to which Executive would have been entitled if he had been
employed by the Company on the last day of the year that includes the
Termination Date and if Executive had achieved his Target Performance Goals for
such year, multiplied by (b) a fraction of which the numerator is the numbers of
days which have elapsed in such year through the Termination Date and the
denominator is 365.
(I) "Severance Period" means the period of Base Salary continuation
provided for in Section 7(C) or (D), whichever is applicable. Where Base Salary
is paid in a single sum, the Severance Period shall be the number of months over
which such Base Salary would be attributable if received ratably.
(J) "Termination by Executive for Good Reason" means termination by
Executive of his employment on 45 days' written notice given by Executive to
Company following the occurrence, without his prior written consent, of any of
the following events, unless the Company fully cures all grounds for such
termination within 30 days after the Executive's notice:
(i) any reduction in his Base Salary or any reduction in his Annual Bonus
(ii) any material failure to timely honor any equity or long-term incentive
award unless such award is replaced with compensation of equal value, or
any other material breach of any of the Company's obligations,
representations or warranties in this Agreement;
(iii) the assignment to him of duties that are materially diminished or
inconsistent with his position and status as an Executive Officer of the
(iv) following any Change in Control, any relocation of Company's principal
office, or of Executive's own office as assigned to him by the Company, to
a location more than 50 miles from Trumbull, Connecticut or any significant
change in his business travel obligations from those existing immediately
prior to the Change in Control;
(v) following any Change in Control, any failure by Company to continue
Executive's participation, at substantially equivalent benefit levels, in
any compensation plan or program in which Executive participated
immediately prior to such Change in Control and which is material to
Executive's total compensation, unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan) has been made with respect to
such plan; or
(vi) the failure of Company to obtain the assumption in writing of its
obligation to perform this Agreement by any successor to all or
substantially all of the assets of the Company within fifteen (15 ) days
after a merger, consolidation, sale or similar transaction.
(K) "Termination Date" means the date on which the Executive is terminated
under Section 7, as determined by the CEO.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first set forth above.
IMAGISTICS INTERNATIONAL INC.
By: /s/ Marc C. Breslowsky
Title: Chairman and CEO
Nathaniel M. Gifford
/s/ Nathaniel M. Gifford