1
Exhibit 10.37
AMENDMENT TO EMPLOYMENT AGREEMENT
To: Xx. Xxxxx X. Xxxxxxxx
Dear Xxxxx:
We refer to your amended and restated employment agreement with Danka Business
Systems PLC (the "Company") dated as of September 20, 1999 (the "Employment
Agreement").
In consideration of the provision by you ("Executive") of past services to the
Company, the receipt of which is hereby acknowledged, the Company agrees,
subject to the next following sentence, that your Employment Agreement shall be
modified and amended on the terms set out in this letter agreement (the
"Agreement"). This Agreement shall not be effective unless approved by ordinary
resolution of the Company's shareholders at the Company's next following annual
general meeting.
Capitalized terms used in this Agreement but not defined herein shall have the
respective meanings given to them in the Employment Agreement.
1. The Company shall procure the issue to Executive of 385,542 American
depositary shares of the Company, each of which at the date hereof
represents four ordinary shares of the Company (the "Incentive ADSs"),
on the terms, and subject to the conditions, set out in this
Agreement.
2. The Incentive ADSs shall be issued to Executive in three equal
instalments of 128,514 Incentive ADSs each on May 8, 2001, May 8, 2002
and May 8, 2003 (each an "Instalment Date"), provided that Executive
remains employed by the Company on the relevant Instalment Date, and
subject to acceleration of issuance of any unissued Incentive ADSs in
the circumstances set out in Section 3.
3. Any unissued Incentive ADSs shall become immediately issuable to
Executive (or Executive's personal representative) upon the occurrence
of any of the following events (each, an "Acceleration Event"): (1)
Executive's death or permanent disability; (2) an involuntary
termination of Executive's employment other than for Cause; (3)
Executive's voluntary termination of employment for Good Reason; (4)
the date the Company gives Executive a Notice to Terminate other than
for Cause; or (5) a Change of Control (as defined in the Change of
Control Agreement). Any unissued Incentive ADSs which become issuable
pursuant to this Section 3 shall be issued within 10 days of the
receipt by the Company of the Consideration (as such term is defined
in Section 4) for such Incentive ADSs.
4. The Company shall not be obligated to procure the issue to Executive
of any Incentive ADSs on any Instalment Date or following any
Acceleration Event unless Executive (or Executive's personal
representative) pays to the Company during the time period(s)
specified in the next following sentence an amount in cash equal to
the nominal value of the ordinary shares of the Company underlying the
Incentive ADS then due to be issued (the "Consideration"). The time
period(s) for payment of the Consideration are as follows: (1) the
Consideration for Incentive ADSs to be issued on an Instalment Date
shall be paid no earlier than 60 days, and no later than 10 days,
prior to the relevant Instalment Date; and (2) the Consideration for
Incentive ADSs to be issued following an Acceleration Event shall be
paid within a period of six months following the occurrence of such
Acceleration Event.
2
5. The Company shall effect the registration under the Securities Act of
1933 of all Incentive ADSs issued pursuant to this Agreement on Form
S-8 prior to the first Instalment Date.
6. In the event of: (1) any consolidation, sub-division, reclassification
or other reorganization of the American depositary shares or ordinary
shares of the Company in issue; or (2) any distribution of securities
or property of the Company to the holders of American depositary
shares or ordinary shares of the Company; or (3) any liquidation or
partial liquidation of the Company, such adjustments shall be made to
the total number of unissued Incentive ADSs to which Executive is
entitled to prevent dilution or enlargement of Executive's rights
hereunder as the H.R. Committee may reasonably determine to be
appropriate and equitable, provided that the number of unissued
Incentive ADSs shall always be a whole number.
7. The H.R. Committee may (in its sole discretion) determine that, in
substitution for Executive's right to receive such number of Incentive
ADSs as represent up to forty (40) percent of the Incentive ADSs
issuable to Executive on any Instalment Date, Executive shall be paid
(in full and final satisfaction of such right) a sum equal to the then
cash equivalent of such number of Incentive ADSs. For the purposes of
the preceding sentence, the "then cash equivalent" of an Incentive ADS
is the closing market price of the Company's American depositary
shares on the NASDAQ National Market System on the dealing day last
preceding the relevant Instalment Date.
8. Other than as may otherwise be permitted by the Listing Rules of the
UK Listing Authority from time to time, except for minor amendments to
benefit the administration of the arrangements contemplated by this
Agreement to take account of a change in legislation or to obtain or
maintain favorable tax, exchange control or regulatory treatment, no
alteration or addition to this Agreement which is to Executive's
advantage shall be made without the prior approval by ordinary
resolution of the members of the Company in general meeting.
9. This Agreement shall remain in full force and effect notwithstanding
the expiration of the Employment Period specified in the Employment
Agreement.
Please sign the attached copy of the Agreement and return it to the Company to
acknowledge your agreement to the foregoing.
Dated: ___________, 2000
DANKA BUSINESS SYSTEMS PLC
By:
-------------------------------------
Director
Agreed: Xxxxx X. Xxxxxxxx
-------------------------------------
