**Exhibit10.13**

**OMTOOL,LTD.**

 

# **Personaland Confidential**

 

# **ViaHand Delivery**

 

Robert L. Voelk

Omtool, Ltd.

8A Industrial Way

Salem, NH 03079

 

Re:  Changeof Control Severance Eligibility

 

Dear:  Robert:

 

In connection withyour “at-will” employment with Omtool, Ltd. (“Omtool” or the “Company”), Omtoolagrees to provide you with eligibility for the severance benefits set forth inthis letter agreement (the “Agreement”) if your employment is terminated underthe circumstances described below:

 

**1.**              **At-Will Employment**.  This Agreement is not a contract to employyou for a definite time period, and is not intended to be and does notconstitute a contract or part of a contractual agreement for continuedemployment, either express or implied, between the Company and you, it beingacknowledged that your employment is “at will” and that either you or Omtoolmay terminate the employment relationship at any time, for any or no reason,with or without “Cause” (as defined herein) and with or without prior notice.

 

**2.**              **Notice of Termination and otherMatters**.  Any terminationof your employment, whether by you or Omtool, will be communicated by writtennotice (“Notice of Termination”) to the other party.  All notices provided for in this Agreement will be in writing andwill be effective when personally delivered (e.g., hand delivery or viaelectronic mail, where applicable) or mailed by U.S. mail, postage prepaid,addressed to Omtool, Ltd., 8A Industrial Way, Salem, NH 03079, and to you atthe address shown above or to such other address as either Omtool or you mayhave furnished to the other in writing.

 

**3.              SeverancePayments and Benefits Upon a Qualified Termination**.

(a) Omtool will provideyou with the severance payments listed below in the event of a QualifiedTermination or Resignation and provided that you execute a separation agreementand general release in a form acceptable to the Company, except that therelease will not affect your rights to indemnification, any rights underapplicable directors and officers liability insurance, or vested benefits (ifany), and provided that you continue to adhere to any post-terminationobligations including, but not limited to, any non-competition, non-disclosureand non-solicitation covenants.  A“Qualified Termination” means your employment is terminated by the Companywithout “Cause” after a Change of Control of the Company, or by you byresignation after a Change of Control. A termination of your employment will not constitute a “QualifiedTermination” if your employment is terminated at any time because (i) you dieor become Disabled, (ii) Omtool terminates you for “Cause,” or (iii) theCompany files for bankruptcy.

 

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(b) If a QualifiedTermination occurs, you will be eligible to receive the following severance payand benefits:

 

(i) Severance Pay.  Severance will be paid, in equal monthlyinstallments at your monthly base salary rate in effect immediately prior tothe Qualified Termination, for twenty-four months from the date of theQualified Termination.  The firstseverance payment will be made upon the first regularly scheduled Companypayday on or following your execution of the release agreement referencedabove, in accordance with the Company’s normal payroll practices as establishedor modified from time to time, and will be subject to all federal, state and/orlocal payroll and withholding taxes.

 

(ii) Payment of COBRAPremiums.  If you are eligible forand elect to continue health and dental continuation coverage in accordancewith the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), theCompany will pay your COBRA premium (equal to the amount it paid during youremployment) until the earlier of (x) 18 months from the date of the QualifiedTermination, or (y) the date on which you become ineligible to receive COBRAcoverage.  During the period in whichthe Company is providing this benefit, you will be responsible for paying theportion of the premiums required for active employees, which will beautomatically deducted from the severance payments referenced in Section3(b)(i).  Thereafter, you will beresponsible for all COBRA payments.

 

(iii) Continuation ofCompany Paid Perquisites.  TheCompany will continue to provide you with the following benefits, subject toapplicable federal and state income tax reporting and withholding, during theperiod of severance payments:

(a)Company paidvehicle (including operating costs and insurance) consistent with the benefityou currently receive.

(b) Life insurancecoverage in the amount of $500,000.

(c) Disabilityinsurance coverage consistent with those benefits provided under Mass MutualPolicy 9512361.

 

(c) You will notbe entitled to any of the severance payments and/or benefits set forth above inSections 3(b)(i)-(iii) if your employment termination from Omtool is not aQualified Termination.  If youremployment termination is not a Qualified Termination, your employment and thisAgreement will automatically terminate and the Company will pay you (or in thecase of death, your designated beneficiary or, if no beneficiary has beendesignated by you, your estate) your base salary earned but unpaid and vacationpay accrued but unused as of the termination date, as well as any bonus and/orcommission payment, to the extent such payment is earned and due in accordancewith any such bonus and/or commission plan.

 

(d) If Omtool determines that you have materially breached the terms ofany non-competition or confidentiality provision contained in any employment,consulting, advisory, non-disclosure, non-competition or other similaragreement between you and Omtool, then you agree that Omtool, regardless of themanner of your employment termination, can refuse to pay and/or cease payingand/or performing all severance-related obligations under this Section 3 to theextent permitted by applicable law.  Thecessation of these severance payments and benefits shall be in addition to, andnot as an alternative to, any other remedies at law or in equity available tothe Company, including the right to seek an injunction, which you shall notoppose.

 

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**4.             Definitions**.  For the purposes of this Agreement, theterms listed below are defined as follows:

 

(a) **Disabled**.  You are “Disabled” for the purposes of thisAgreement if you have been absent from the full-time performance of your dutieswith Omtool for 180 days, whether or not consecutively, within a anyconsecutive 12-month period, because of incapacity due to physical or mentalimpairment that substantially limits a major life activity, and you fail toresume performance of your essential job duties, with or without reasonableaccommodation (provided that any such accommodation does not cause the Companyan undue hardship).

 

(b) **Cause**.  “Cause,” which shall be determined by theCompany’s Board of Directors (the “Board”), shall mean: (i) your commission ofany act of gross negligence, dishonesty, insubordination or breach of fiduciaryduty which materially adversely affects the Company or its employees, , (iv)your material breach of any term of this Agreement or any other agreement withOmtool, (v) your conviction of or plea of *nolo contendere* to (A) any felony or (B)any misdemeanor involving fraud, deceit, moral turpitude or embezzlement, or(vi) your disregard of or failure to follow the Company’s rules or policies inany material respect, or your commission of any other action that may causematerial injuries to the Company, including your misappropriation of any moneyor other assets or property (tangible or intangible) of the Company.]

 

(c) **Change ofControl**.  A “Change ofControl” shall mean the occurrence of one of the following events during theperiod in which you are eligible to receive the severance payments and otherbenefits listed in Section 3: (i) any transaction in which the Company isto be consolidated with or acquired by another entity in a merger, tender offeror other reorganization in which the holders of the outstanding voting stock ofthe Company immediately preceding the consummation of such event, shall, immediatelyfollowing such event, hold, as a group, less than a majority of the votingsecurities of the surviving or successor entity, or (ii)  the sale of allor substantially all of the Company’s assets. Notwithstanding the foregoing, the Board of Directors of the Companymay, prior to the closing of any transaction in which the Company is to beconsolidated with or acquired by another entity in a merger or otherreorganization, determine that such transaction constitutes a “Change ofControl” for the purposes of this Agreement.

 

 

**5.             Assignment**.  Omtool may assign this Agreement, which willinure to the benefit of and be enforceable by Omtool’s successors andassigns.  You may not assign thisAgreement.  Notwithstanding theforgoing, this Agreement will inure to and be binding upon the Company’ssuccessors.  The Company will requireany successor who effects an Acquisition to agree in writing to assume thisAgreement.

 

**6.             Confidentiality**.  The terms and conditions of this Agreementare strictly confidential.  You shallnot discuss or reveal any information concerning this letter agreement to anypast or present Omtool employee or any third person or entity other than yourcounsel and members of your immediate family.

 

 

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**7.             Miscellaneous**.

 

(a) In the eventof any dispute, this Agreement will be construed as a whole, will beinterpreted in accordance with its fair meaning, and will not be construedstrictly for or against either you or the Company.  If one or more of the provisions contained in this Agreementshall for any reason be held to be unenforceable at law, such provision orprovisions shall be construed by the appropriate judicial body by limiting orreducing it or them, so as to be enforceable to the maximum extent compatiblewith (i) the applicable law as it shall then appear and (ii) the parties’intent.

 

(b) This Agreementshall be deemed to be made and entered into in the State of New Hampshire.  This Agreement and any claims arising out ofthis Agreement (or any other claims arising out of the relationship between theparties) shall be governed by and construed in accordance with the laws of theState of New Hampshire and shall in all respects be interpreted, enforced andgoverned under the internal and domestic laws of such State, without givingeffect to the principles of conflicts of laws of such State.

 

(c) No waiver byeither party of any breach by you of any provision hereof shall be deemed to bea waiver of any later or other breach thereof or as a waiver of any otherprovision of this Agreement.  ThisAgreement may not be waived, amended, discharged or terminated orally or by anycourse of dealing between the parties, but only by an instrument in writing signedby you and either the Company’s Chief Executive Officer or a designated memberof the Company’s Board of Directors.

 

(d) You mustexecute a legally enforceable separation agreement and general release in aform acceptable to Omtool prior to the receipt of any payments or otherbenefits set forth above.

 

(e) This Agreementis the exclusive agreement with respect to the severance payments and benefitspayable to you in the event of a termination of your employment.  All prior negotiations and agreementsregarding severance benefits, whether oral or written, express or implied, arehereby superseded and cancelled.

 

### (f)As a condition to this Agreement you agree to enter into and execute anon-competition and non-solicitation agreement with the Company in the formattached as Exhibit A.

 

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If this letter sets forthour agreement, kindly sign and return to Omtool the enclosed copy of thisletter.

 
|                                                | Sincerely,       |
|-----------------------------------------------------|------------------|
|                                                |             |
|                                                | **OMTOOL, LTD.** |
|                                                |             |
|                                                | By:              |     /s/  Andrew E. Lietz |   |
|                                                |             |   |
|                                                | Title:           |   |
|                                                |             |
| Accepted and agreed to this  29 day of August, 2003 |             |
|                                                |             |
|                                                |             |   |
|                                                |             |
| /s/ Robert L. Voelk                                 |             |   |
| Signature                                           |             |
|                                                     |                  |  |  |  |  |

 

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**Exhibit A**

###  

### **NONCOMPETITIONAND NONSOLICITATION AGREEMENT**

 

In consideration and as a condition of my employmentand/or continued employment by Omtool, Ltd. and/or any of its subsidiaries,subdivisions or affiliates (the “Company”), I hereby agree with the Company asfollows:

 

1.  BestEfforts.  During the period of myemployment by the Company, I shall devote my full time and best efforts to thebusiness of the Company and I shall neither pursue any business opportunityoutside the Company nor take any position with any organization other than theCompany without the approval of the Company’s President and/or the Board ofDirectors; provided, however, that I may participate in professional, civic,social and/or charitable activities that do not adversely affect my ability tocarry out my responsibilities to the Company.

 

2.  Noncompetition.  During the period of my employment by the Companyand for one year thereafter (the “Term”), and regardless of the reasons for mytermination, I shall not, in any geographic area in which the Company currentlydoes business or is anticipating or planning to do business, directly orindirectly, alone or as a consultant, partner, officer, director, employee,joint venturer, lender or stockholder of any entity, (a) accept employment withany business that competes (whether directly or indirectly) with the productsor services being created, developed, manufactured, marketed, distributed orsold by the Company, or (b) engage in any business or activity that competes(whether directly or indirectly) with the products or services being created,developed, manufactured, marketed, distributed or sold by the Company.

 

3.  Nonsolicitationof Customers.  During the Term, andregardless of the reasons for my termination, I shall not, directly orindirectly, alone or as a consultant, partner, officer, director, employee,joint venturer, lender or stockholder of any entity, contact, solicit or dobusiness in any competitive capacity (i.e., in any capacity that directly orindirectly competes with any of the products or services being created,developed, manufactured, marketed, distributed or sold by the Company) with anycustomer of the Company or any potential customer of the Company (i) with whomI have had contact, or (ii) about whom I obtained or became familiar withthrough Confidential Information (as defined in Paragraph 5) during the courseof my employment with the Company.

 

4.  Nonsolicitationof Employees.  During the Term, andregardless of the reasons for my termination, I shall not, directly orindirectly, alone or as a consultant, partner, officer, director, employee,joint venturer, lender or stockholder of any entity, employ, attempt to employor knowingly permit any company or business organization by which I am employedor which is directly or indirectly controlled by me to employ, any Companyemployee, agent, representative or consultant, or any such person whoseemployment or consultancy with the Company has terminated within six months(either before or after) of my departure from the Company, or in any mannerseek to solicit or induce any employee, agent, representative or consultant toleave his or her employment with the Company, or assist in the recruitment orhiring of any such person.

 

5.  Nondisclosure.  I shall not at any time, whether during orafter the termination of my employment, reveal to any person or entity anyConfidential Information except to employees of the Company who need to knowsuch Confidential Information for the purposes of their

 

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employment, or as otherwise authorized by the Company in writing.  The term “Confidential Information” shallinclude, without limitation, any information concerning the organization,business or finances of the Company or of any third party, which the Company isunder an obligation to keep confidential or that is maintained by the Companyas confidential.  Such ConfidentialInformation shall include, but is not limited to, trade secrets or confidentialinformation respecting inventions, products, designs, methods, know-how,techniques, systems, processes, engineering data, software programs, softwarecode, works of authorship, customer lists, customer information, marketing orsales information, personnel information, financial information, pricinginformation, business plans, projects, plans and proposals.  I shall keep confidential all mattersentrusted to me and shall not use or attempt to use any ConfidentialInformation except as may be required in the ordinary course of performing myduties as an employee of the Company, nor shall I use any ConfidentialInformation in any manner which may injure or cause loss or may be calculatedto injure or cause loss to the Company, whether directly or indirectly.

 

6.  CompanyProperty.  I agree that during myemployment I shall not make, use or permit to be used any Company Propertyotherwise than for the benefit of the Company. The term “Company Property” shall include all notes, memoranda, reports,lists, records, files, drawings, sketches, specifications, designs, softwareprograms, software code, data, computers, cellular telephones, pagers, creditand/or calling cards, keys, access cards, documentation or other materials ofany nature and in any form, whether written, printed, electronic or in digitalformat or otherwise, relating to any matter within the scope of the business ofthe Company or concerning any of its dealings or affairs and any other Companyproperty in my possession, custody or control. I understand that *de minimis* use of a Company cellulartelephone, pager, credit and/or calling card will not violate this Section,provided that I timely reimburse the Company for any personal use in accordancewith Company policy.  I further agreethat I shall not, after the termination of my employment, use or permit othersto use any such Company Property.  Iacknowledge and agree that all Company Property shall be and remain the soleand exclusive property of the Company. Immediately upon the termination of my employment I shall deliver allCompany Property in my possession, and all copies thereof, to the Company.

 

7.  Assignmentof Developments.

 

(a) If at any time or times during my employment, I shall (either aloneor with others) make, conceive, create, discover, invent or reduce to practiceany Development that (i) relates to the business of the Company or anycustomer of or supplier to the Company or any of the products or services beingdeveloped, manufactured or sold by the Company or which may be used in relationtherewith; or (ii) results from tasks assigned to me by the Company; or(iii) results from the use of premises or personal property (whethertangible or intangible) owned, leased or contracted for by the Company, thenall such Developments and the benefits thereof are and shall immediately becomethe sole and absolute property of the Company and its assigns, as works madefor hire or otherwise.  The term“Development” shall mean any invention, modification, discovery, design,development, improvement, process, software program, work of authorship,documentation, formula, data, technique, know-how, trade secret or intellectualproperty right whatsoever or any interest therein (whether or not patentable orregistrable under copyright, trademark or similar statutes (including, but notlimited to, the Semiconductor Chip Protection Act) or subject to analogousprotection).  I shall promptly discloseto the Company (or any persons designated by it) each such Development.  I hereby assign all rights (including, but 

 

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not limited to, rights to inventions, patentablesubject matter, copyrights and trademarks) I may have or may acquire in the Developmentsand all benefits and/or rights resulting therefrom to the Company and itsassigns without further compensation and shall communicate, without cost ordelay, and without disclosing to others the same, all available informationrelating thereto (with all necessary plans and models) to the Company.

 

(b) Excluded Developments.  I represent that the Developments identifiedin the Appendix, if any, attached hereto comprise all the Developments that Ihave made or conceived prior to my employment by the Company, whichDevelopments are excluded from this Agreement. I understand that it is only necessary to list the title of suchDevelopments and the purpose thereof but not details of the Development itself.  IF THERE ARE ANY SUCH DEVELOPMENTS TO BEEXCLUDED, THE UNDERSIGNED SHOULD INITIAL HERE; OTHERWISE IT WILL BE DEEMED THATTHERE ARE NO SUCH EXCLUSIONS.         .

 

8.  FurtherAssurances.  I shall, during myemployment and at any time thereafter, at the request and cost of the Company,promptly sign, execute, make and do all such deeds, documents, acts and thingsas the Company and its duly authorized officers may reasonably require:

 

(a) to apply for, obtain,register and vest in the name of the Company alone (unless the Companyotherwise directs) patents, copyrights, trademarks or other analogousprotection in any country throughout the world relating to a Development of theCompany and when so obtained or vested to renew and restore the same; and

 

(b) to assist in thedefense of any judicial, opposition or other proceedings in respect of suchapplications and any judicial, opposition or other proceeding, petition orapplication for revocation of any such patent, copyright, trademark or otheranalogous protection.

 

If the Company is unable, after reasonable effort, tosecure my signature as required by this paragraph on any application forpatent, copyright, trademark or other analogous registration or other documentsregarding any legal protection relating to a Development, whether because of myphysical or mental incapacity or for any other reason whatsoever, I herebyirrevocably designate and appoint the Company and its duly authorized officersand agents as my agent and attorney-in-fact, to act for and in my behalf andstead to execute and file any such application or applications or otherdocuments and to do all other lawfully permitted acts to further theprosecution and issuance of  patent,copyright or trademark registrations or any other legal protection thereon withthe same legal force and effect as if executed by me.

 

9.  EmploymentAt Will.  I understand that neitherthis Agreement nor any other document I have signed regarding my employmentwith the Company constitutes an express or implied employment contract and thatmy employment with the Company is on an “at-will” basis.  Accordingly, I understand that either theCompany or I may terminate my employment at any time, for any or no reason,with or without prior notice.

 

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10.  Representations.

 

(a) I represent that my employment with the Company and my performanceof all of the terms of this Agreement do not and will not breach any agreementto keep in confidence proprietary information acquired by me in confidence orin trust prior to my employment by the Company, nor will it violate anynonsolicitation and/or noncompetition agreements entered into prior to myemployment with the Company.  I have notentered into, and I shall not enter into, any agreement either written or oralin conflict herewith.

 

(b) I further agree that any breach of this Agreement by me will causeirreparable damage to the Company and that in the event of such breach theCompany shall have, in addition to any and all remedies of law, the right to aninjunction, specific performance or other equitable relief to prevent theviolation of my obligations hereunder.

 

11.  Waiver;Amendments.  Any waiver by theCompany of a breach of any provision of this Agreement shall not operate or beconstrued as a waiver of any subsequent breach of such provision or any otherprovision hereof.  In addition, anyamendment to or modification of this Agreement or any waiver of any provisionhereof must be in writing and signed by the Company’s President or, ifapplicable, a member of the Board of Directors.

 

12.  Severability.  I agree that each provision and the subpartsof each provision herein shall be treated as separate and independent clauses,and the unenforceability of any one clause shall in no way impair the enforce­abilityof any of the other clauses of the Agreement. Moreover, if one or more of the provisions contained in this Agreementshall for any reason be held to be excessively broad as to scope, activity,subject or otherwise so as to be unenforceable at law, such provision or provisionsshall be construed by the appropriate judicial body by limiting or reducing itor them, so as to be enforceable to the maximum extent compatible with theapplicable law as it shall then appear. I hereby further agree that the language of all parts of this Agreementshall in all cases be construed as a whole according to its fair meaning andnot strictly for or against either of the parties.

 

13.  Survival.  This Agreement shall be effective as of thedate entered below.  My obligationsunder this Agreement shall survive the termination of my employment regardlessof the manner of such termination and shall be binding upon my heirs,executors, administrators and legal representatives.

 

14.  Assignment.  The Company shall have the right to assign thisAgreement to its successors and assigns, and all covenants and agreementshereunder shall inure to the benefit of and be enforceable by said successorsor assigns.  I will not assign thisAgreement.

 

15.  GoverningLaw; Forum Selection Clause.  ThisAgreement shall be governed by and construed in accordance with the laws of theState of New Hampshire and shall in all respects be interpreted, enforced andgoverned under the internal and domestic laws of the State of New Hampshire,without giving effect to the principles of conflicts of laws of suchState.  Any claims or legal actions byone party against the other arising out of this Agreement shall be governed bythe laws of the State of New Hampshire and shall be commenced and maintained inany state or federal court located in New Hampshire, and I hereby submit to thejurisdiction and venue of any such court.

 

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16.           EntireAgreement.  This Agreement setsforth the complete, sole and entire agreement between the parties with respectto my noncompetition and nonsolicitation obligations and supersedes any and allother agreements, negotiations, discussions, proposals, or understandings,whether oral or written, previously entered into, discussed or considered bythe parties.  This Agreement does notsupercede the Severance Agreement between the Company and me of even dateherewith.

 

IN WITNESS HEREOF, the undersigned has executed thisAgreement as a sealed instrument as of the date first written below.

 

 
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## **APPENDIX– TITLE/PURPOSE OF DEVELOPMENTS**

 

**Thefollowing is a complete list of all Developments and the purpose of thoseDevelopments:**

 

 
|   |   |   | **No  Developments** |
|--------|--------|--------|----------------------|
|   |   |   |                 |
|   |   |   | **See  Below**       |

 

 

**Developmentsand purpose:**

 
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