Exhibit 10.42
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Employment Agreement") is made and entered
into as of the 28 day of March, 2003, by and among Danka Office Imaging Company
("Danka Office Imaging"), Danka Business Systems PLC ("Danka Business Systems"),
Danka Holding Company ("Danka Holding"), and Xxxxxxx X. Xxxxxxxx, an individual
("Executive"). Danka Office Imaging, Danka Business Systems, and Danka Holding
are collectively referred to herein as the "Company."
WITNESSETH:
WHEREAS, the Company wishes to assure itself of the services of Executive,
on the terms and conditions set forth herein; and Executive desires to be so
employed by the Company on said terms.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements herein contained, the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive, and Executive hereby
accepts employment with the Company, all upon the terms and subject to the
conditions set forth in this Employment Agreement.
2. CAPACITY AND DUTIES. Executive shall be employed in the capacity of President
and Chief Operating Officer, Danka International Group reporting to the Chief
Executive Officer of the ultimate PLC Holding Company and all of its
subsidiaries. Executive shall direct and oversee the management and operations
of the Latin America, Canada and Australia business units.
3. EMPLOYMENT TERM.
(a) Term. Employment of Executive by the Company pursuant to this
Employment Agreement shall begin on April 8, 2003 (the "Commencement
Date"), and continue until terminated by either party as provided herein.
The period during which Executive is employed by the Company pursuant to
this Employment Agreement is referred to herein as the "Term" of this
Employment Agreement.
4. PLACE OF EMPLOYMENT. Executive's principal place of work shall be located in
the St. Petersburg, Florida metropolitan area.
5. COMPENSATION.
(a) Salary. Beginning on the Commencement Date and continuing during the
Term, the Company shall pay Executive a base salary at the rate of
$375,000.00 per annum (the "Annual Base Salary"), payable in a manner
consistent with the Company's payroll
1
procedures for U.S. salaried employees. The Human Resources Committee of
the Board (the "H.R. Committee") shall review Executive's Annual Base
Salary at least annually and may increase, but not decrease, the Annual
Base Salary.
(b) Performance Bonuses. In addition to the Annual Base Salary, Executive
shall be entitled to receive an annual bonus under the performance bonus
plan (the "Performance Bonus Plan") approved by the H.R. Committee at the
beginning of each of the Company's Fiscal Years, starting with the Fiscal
Year 2004, which begins April 1, 2003. Executive's bonus plan payments
shall begin with the Company's first fiscal quarter. Upon the Company's
achievement of one hundred percent (100%) of the budgeted target levels of
the Performance Bonus Plan, the Company shall pay Executive a bonus of 50%
of Executive's Base Salary. If the Company meets certain stretch objectives
defined and set forth in the Performance Bonus Plan (as determined by the
H.R. Committee), the Company will pay Executive additional bonuses in
accordance with such Plan up to 110% of Executive's Base Salary. The
Company shall pay any bonus earned by Executive in a lump sum cash payment,
less applicable withholdings, as promptly after the end of the relevant
accounting period as the H.R. Committee is able to certify the Company's
achievement of the relevant financial goals, subject to any deferral
election made by Executive under the terms of the Company's deferred
compensation plan for U.S. executives.
(c) Initial Bonuses. Executive shall receive a bonus of $200,000.00 within
ten business (10) days of the Commencement Date, grossed up for tax
purposes. Such bonus shall cover any and all relocation expenses, temporary
living, and other related costs, except that Executive may receive
reimbursement for temporary living expenses actually incurred not to exceed
$3,000 per month for the first 3 months of employment. If Executive
voluntarily resigns, or is terminated for cause, as defined herein,
Executive shall reimburse Company an amount equal to the pro rata portion
of the Bonus actually paid hereunder (using a two year period from the date
of payment). (e.g. If Executive resigns 12 months from the date of
execution of this Agreement, Executive shall pay Company 50% of bonuses
received under this Section). The pro rata reimbursement hereunder shall be
calculated using the date of payment of such bonuses as the commencement of
the pro rata period.
6. ADDITIONAL COMPENSATION AND BENEFITS. During the Term, the Company shall pay
to or provide Executive with the following additional compensation and benefits:
(a) Stock Options.
(i) Executive shall be eligible to participate in the Company's stock
option plans available to the Company's employees in accordance with
the terms and conditions of such plans.
2
(ii) Executive shall receive from the Company a registered stock
option grant as soon as practicable in the Company's next "open
period" in the amount of 400,000 American Depository Shares ("ADSs")
representing ordinary shares of Danka Business Systems PLC. Vesting of
such options will be in accordance with the Company Stock Option Plan
(1/3 per year for 3 years). The Company shall file a registration
statement on Form S-8 with the Securities Exchange Commission such
that all of the ADSs subject to the option grant shall be registered
shares upon the exercise of the option.
(iii) If Executive seeks to acquire by exercise of any stock option
all or part of the shares that have become exercisable and the Company
declines to allow him to acquire such shares, whether because the
Company has not obtained shareholder approval for the option or
otherwise, the Company shall pay Executive, within ten (10) days after
his attempt to acquire such shares, (1) an amount equal to the
difference between the number of shares Executive sought to acquire
multiplied by the closing price for a share of the Company's common
stock as of the date Executive sought to acquire such shares, on the
one hand, and the option exercise price per share multiplied by the
number of shares Executive sought to acquire, on the other hand, and
(2) an additional payment sufficient to pay any federal, state, and
local income tax and social security, or other employment tax on the
amount paid under Section 6(a)(iii)(1), as well as any additional
federal, state and local income tax and social security or other
employment tax on any such gross-up payment, determined by using the
top marginal rates of federal, state, and local income taxes and
social security, or other employment taxes applicable to the
Executive's taxable income in effect during the year of payment.
(b) Executive Deferred Compensation Plan. Executive shall be eligible to
participate in the Company's Executive deferred compensation plan in
accordance with its terms and conditions.
(c) Insurance. The Company shall provide Executive and his dependents with
reasonable and adequate health, dental, short term disability, long term
disability, and life insurance. Such insurance coverage shall be no less
favorable than that from time to time made available to other senior
executives of the Company located in the United States.
(d) 401K Plan. Executive shall be entitled to participate in the Company's
401K plan in accordance with its terms and conditions.
(e) Vacation. Executive shall be entitled to at least four (4) weeks of
paid vacation during each year during the Term, prorated for partial years.
Such vacation shall be subject to the Company's policies and procedures for
senior executives.
3
(f) Business Expenses. The Company shall promptly reimburse Executive for
all reasonable, ordinary and necessary expenses he incurs in connection
with his employment by the Company (including, but not limited to,
automobile and other business travel, and customer entertainment expenses)
on the same basis as other senior executives of the Company.
(g) Indemnification. The Company will, to the fullest extent permitted by
law, indemnify and hold Executive harmless from any and all liability
(including, without limitation, judgments, fines, settlement payments,
expenses, costs, and attorneys' fees) arising from his service as an
employee, officer, or director of the Company. To the fullest extent
permitted by law, if there is a potential or actual conflict of interest
between the Company and Executive, the Company will advance legal fees and
expenses to Executive for counsel selected by Executive in connection with
any litigation, investigation, action, suit, or other proceeding related to
Executive's employment with the Company or his performing services for the
Company, whether as a director, officer, or employee of the Company. During
the Term, the Company shall maintain adequate and reasonable Directors and
Officers liability insurance naming Executive as an insured.
(h) Other Employee Benefits. Executive shall also be entitled to any other
fringe benefits, bonuses, and similar programs, including regular holidays,
and shall be eligible to participate in all plans or arrangements
maintained by the Company for the benefit of its employees, officers, or
directors, including without limitation all compensation, welfare, bonus,
incentive, retirement, thrift, pension, profit sharing, deferred
compensation, employee loan, and insurance plans or arrangements. Executive
shall at all times receive benefits no less favorable than those received
by other senior executives.
7. TERMINATION BY THE COMPANY OR BY EXECUTIVE. This Employment Agreement may be
terminated as follows:
(a) By the Company.
(i) For Cause. The Company may terminate this Employment Agreement and
Executive's employment with the Company at any time for Cause (as
defined in Section 9) ("Cause Termination"); provided, however, that
the Company shall give Executive written notice of Cause Termination
specifying the reason for the termination, and Executive shall have
the opportunity to address the Board before he is terminated for
Cause.
(ii) By Company Notice. The Company may terminate this Employment
Agreement and Executive's employment with the Company upon sixty (60)
days written notice for any reason not included in the definition of
Cause ("Company Notice Termination").
4
(b) Death or Disability. This Employment Agreement and Executive's
employment with the Company will terminate immediately upon Executive's
death or Disability (as defined in Section 9) ("Death or Disability
Termination"). If either party terminates Executive's employment due to
Disability, the terminating party shall give the other party written notice
to that effect.
(c) By Executive.
(i) For Good Reason. Executive may terminate this Employment Agreement
and Executive's employment by the Company at any time for Good Reason
(as defined in Section 9) ("Good Reason Termination"). In the event
the Company disputes Executive's Good Reason Termination, the Company
shall notify Executive in writing of such dispute within ten (10) days
of receiving notice of such termination for Good Reason. If the
Company does not so notify Executive within the ten (10) day period,
the Company shall be deemed to have accepted Executive's determination
of Good Reason.
(ii) By Executive Notice. Executive may terminate this Employment
Agreement and Executive's employment with the Company for any reason
not included in the definition of Good Reason by giving the Company
sixty (60) days written notice of such termination ("Executive Notice
Termination").
8. PAYMENTS UPON TERMINATION.
(a) Company Notice Termination and Good Reason Termination. If the Company
terminates Executive's employment for any reason other than for Cause (as
defined in Section 9) or if Executive terminates his employment for Good
Reason (as defined in Section 9), the Company shall pay to Executive
(subject to Executive's execution of a reasonable, mutually agreeable
Separation Agreement and Release of Claims and withholding of applicable
taxes) a severance of two (2) times Executive's then current base salary
plus, if such termination is within 12 months of the Commencement Date, two
(2) times Executive's Target Bonus. If such termination occurs after 12
months of employment, Executive shall be paid, in addition to the above
base salary severance, two (2) times the actual target bonus earned over
twelve (12) months immediately preceding such termination. Such severance
shall be paid in equal installments over twenty-four (24) months on the
Company's standard bi-weekly Company payroll dates, beginning one (1) month
following the date of termination. The Company shall continue to provide
Executive and his family, for a period of twenty-four (24) months after the
date of termination, with the same insurance benefits coverage being
provided to Executive under Section 6(c) on the date the notice of
termination is given. Executive shall also be entitled to a pro-rata
portion of the performance bonus under Section 5(b) to which he would have
been entitled in the year of termination if his employment had not
terminated.
5
Executive shall also be entitled to any of his Annual Base Salary accrued
through the date of termination, payments for any accrued but unused
vacation for the year of termination any bonuses earned but not previously
paid with respect to the accounting period of the Company most recently
ended, and any vested benefits payable to Executive under the terms of any
deferred compensation plan, 401K plan, stock option plan, or other benefit
plans maintained by the Company in which Executive participated.
Additionally, notwithstanding the terms of the Company's stock option
plan(s), all stock options received by Executive shall become fully vested
and immediately exercisable upon a Company Notice Termination or Good
Reason Termination. Such stock options shall remain exercisable for a
period of twenty-four (24) months. All of Executive's other unvested
benefits, including, without limitation, any Company 401K contributions or
profit sharing contributions, shall immediately vest upon a Company Notice
Termination or Good Reason Termination.
(b) Cause Termination and Executive Notice Termination. If Executive's
employment is terminated by the Company for Cause (as defined in Section 9)
or if Executive terminates his employment for any reason other than Good
Reason (as defined in Section 9), Executive shall be entitled to receive
any of his Annual Base Salary accrued through the date of termination, any
accrued but unpaid vacation pay for the year of termination, any bonuses
earned but not previously paid with respect to the accounting period of the
Company most recently ended, and any vested benefits payable to Executive
under the terms of any deferred compensation plan, 401K plan, stock option
plan, or other plans maintained by the Company in which Executive
participates. Notwithstanding the terms of the Company's stock option
plan(s), Executive shall not forfeit any vested options upon a Cause
Termination or Executive Notice Termination, and all such vested options
shall remain exercisable for a period of at least twenty-four (24) months
(c) Death or Disability Termination. If Executive's employment is
terminated due to his death or Disability (as defined in Section 9), the
Company will also continue to pay Executive (or his estate), as severance,
the Annual Base Salary through the end of the month of termination.
Executive (or his estate) shall also be entitled to receive any of his
Annual Base Salary accrued through the date of termination, any accrued but
unpaid vacation pay for the year of termination, any bonuses earned but not
previously paid with respect to the accounting period of the Company most
recently ended, and any vested benefits payable to Executive under the
terms of any deferred compensation plan, 401K plan, stock option plan, or
other plans maintained by the Company in which Executive participates. The
Company shall continue to provide Executive (if Disabled) and his family,
for a period of twenty-four (24) months after the date of termination, with
the same insurance benefits required by Section 6(c) on the date Death or
Disability Termination occurs. Additionally, notwithstanding the terms of
the Company's stock option plans, all stock options received by Executive
shall become fully vested and
6
immediately exercisable upon a Death or Disability Termination. Such stock
options shall remain exercisable for a period of not less than twenty-four
(24) months. All of Executive's other unvested benefits, including, without
limitation, any Company 401K contributions or profit sharing contributions,
shall immediately vest upon a Death or Disability Termination.
9. DEFINITIONS. In addition to the words and terms elsewhere defined in this
Employment Agreement, certain capitalized words and terms used in this
Employment Agreement shall have the meanings given to them by the definitions
and descriptions in this Section 9 unless the context or use indicates another
or different meaning or intent, and such definition shall be equally applicable
to both the singular and plural forms of any of the capitalized words and terms
herein defined. The following words and terms are defined terms under this
Employment Agreement:
(a) Cause. For purposes of this Employment Agreement, the term "Cause"
shall mean and be limited to:
(i) Executive was convicted of a felony or entered a guilty or nolo
contendere plea to such a crime;
(ii) Executive was convicted of any lesser crime committed in
connection with the performance of his duties hereunder involving
dishonesty, fraud or moral turpitude; or
(iii) Executive's persistent and willful misconduct or gross
negligence in, performing his material duties in accordance with
Section 2 herein (other than any such failure resulting from
Executive's Disability, as defined herein) which gross negligence or
willful misconduct has a material adverse effect on the Company. For
purposes of this Agreement, an act or failure to act on Executive's
part shall be considered "willful" if it was done or omitted to be
done by Executive not in good faith, and shall not include any act or
failure to act resulting from any incapacity of Executive.
(b) Disability. For purposes of this Employment Agreement, the term
"Disability" shall mean the inability of Executive to perform Executive's
essential duties and responsibilities (even with reasonable accommodation)
under this Employment Agreement for a period of one hundred and eighty
(180) consecutive days during any twelve (12) month period by reason of
Executive's mental or physical disability. Both the Company and Executive
may appoint a qualified physician to determine whether Executive is
Disabled. If those physicians cannot agree, the physicians shall mutually
appoint a third qualified physician, whose determination of whether
Executive has a Disability shall be final.
7
(c) Good Reason. For purposes of this Employment Agreement, the term "Good
Reason" shall mean:
(i) the Company materially breaches a term of this Employment
Agreement (including, without limitation, the failure of the Company
to pay or provide Executive any of the compensation or benefits to
which he is entitled under this Employment Agreement), which breach
was not corrected by the Company within thirty (30) days after
receiving written notice of such breach from Executive;
(ii) the relocation of Executive's principal office, without
Executive's prior written consent, more than forty (40) miles away
from the Company's current headquarters in St. Petersburg, Florida.;
(iii) the Company's reduction of Executive's compensation and/or
benefits hereunder without Executive's prior written consent;
(iv) any removal of Executive from, or the failure to appoint, elect,
reappoint, or reelect Executive to, the positions of President
International Group, or a position of comparable responsibility and
scope, or any material change in Executive's status, title,
authorities or responsibilities (including reporting responsibilities)
which represents a demotion from Executive's status, title, position
or responsibilities (including reporting responsibilities).
(v) the failure of the H.R. Committee to set reasonably attainable
budgeted target levels and objectives in the Performance Bonus Plan.
(vi) any removal of Executive from the reporting relationship to the
current Chief Executive Officer (unless due to Executive's appointment
as Chief Executive Officer) as defined in Section 2 hereof; however,
in the event Executive terminates employment for Good Reason as
defined in this subsection 9 (c)(vi), Executive shall, if within 30
days and upon 90 days written notice, receive as full compensation
(and in lieu of any severance payments provided in Section 8(a)
hereof) therefor:
. a release of any pro rata reimbursement liability under
Section 5 (c ) of this Agreement, and
. the full vesting of any stock options awarded to the date of
termination, which options shall remain exercisable for a
period of 24 months following the termination date.
. Twenty-four (24) months of insurance benefits coverage as
provided in Section 6(c).
8
(d) Restricted Area. For purposes of this Employment Agreement, the term
"Restricted Area" shall mean the entire world.
10. NON-COMPETITION AND CONFIDENTIALITY.
(a) Non-Competition. During the Term and for a period of twenty-four (24)
months following the termination of Executive's employment hereunder for
Good Cause or without Good Reason, Executive shall not, in the Restricted
Area, directly or indirectly, enter the employ of, or render any services
to, any person, firm or corporation engaged in any business competitive
with the businesses engaged in by the Company, any constituent partners of
the Company or any of their respective parents, subsidiaries or affiliates;
further, Executive shall not engage in such business, directly or
indirectly, as an individual, partner, shareholder, director, officer,
principal, agent, employee, trustee, consultant, or any other relationship
or capacity; provided, however, that nothing contained in this Section 10
shall be deemed to prohibit Executive from acquiring, solely as an
investment, a less than five percent (5%) interest in the equity of any
publicly traded corporation or limited partnership. This provision shall
specifically include but not be limited to Xerox, Ikon, Hewlett-Packard,
Lexmark, Imagistics and Global Imaging Services. Executive may request
Company's consent to work for a non-competing division of any other
Company, which consent shall not be unreasonably withheld.
(b) Non-Solicitation of Employees. During the Term and for a period of
twenty-four (24) months following the termination of Executive's employment
hereunder for Good Cause or without Good Reason, Executive, except within
the course of the performance of his duties hereunder, shall not solicit
for employment any current employee of the Company, any constituent
partner of the Company, or any of their respective parents, subsidiaries,
or affiliates, if Executive has had material business contact with such
individual during the Term.
(c) Confidentiality. Executive shall not, at any time hereafter, disclose
to any person, firm or corporation or otherwise use any confidential
information regarding the customers, suppliers, market arrangements, or
methods of operations of the Company, any constituent partner of the
Company or any of their respective parents, subsidiaries, or affiliates or
any other information of the Company, any constituent partner of the
Company or any of their respective parents, subsidiaries or affiliates,
except to the extent necessary to conduct the business of the Company, or
to comply with law or the valid order of a governmental agency or court of
competent jurisdiction. Without limiting the generality of the foregoing,
the Parties acknowledge and agree that all information not otherwise
generally known to the public relating to each of (i) this Agreement, or
(ii) the Company, any constituent partner of the Company or any of their
respective parents, subsidiaries, or affiliates, is confidential and
proprietary and is not to be disclosed, to any persons or entities or
otherwise used, except to the extent necessary to conduct the business of
the Company, or to comply with law or the valid order of a governmental
agency or court of competent jurisdiction.
9
(d) Rights to Innovations. Any invention, improvement, design, development
or discovery conceived, developed, invented or made by Executive, alone or
with others, during his employment hereunder and applicable to the business
of the Company, its parents, subsidiaries or affiliates shall become the
sole and exclusive property of the Company. Executive shall (i) disclose
the same completely and promptly to the Company, (ii) execute all documents
requested by the Company in order to vest in the Company the entire right,
title and interest, in and to the same, (iii) execute all documents
required by the Company for the filing, and prosecuting of such
applications for patents, copyrights and/or trademarks, which the Company,
in its sole discretion, may desire to prosecute, and (iv) provide to the
Company, at the Company's expense, all assistance it may reasonably require
including, without limitation, the giving of testimony in any suit, action
or proceeding, in order to obtain, maintain and protect the Company's
rights therein and thereto.
(e) Injunctive Relief. Any breach or threatened breach by Executive of any
provision of this Section 10 shall cause the Company irreparable harm which
cannot be remedied solely by damages. In the event of a breach or
threatened breach by Executive of any of the provisions of this Section 10,
the Company shall be entitled to injunctive relief restraining Executive.
Nothing herein shall be construed as prohibiting the Company from pursuing
any other remedies available at law or in equity in the event of such
breach or threatened breach, including the recovery of damages.
11. SUCCESSORS. This Employment Agreement shall be binding on the Company and
any successor to its business or to a majority of its business assets and the
Company shall require any successor in interest (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to expressly assume and agree to
perform this Employment Agreement; provided, however, that no such assumption
shall relieve the Company of its obligations hereunder.
12. BINDING EFFECT. This Employment Agreement shall inure to the benefit of and
be enforceable by Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
13. MODIFICATION AND WAIVER. No provision of this Employment Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in a writing that specifies the specific provision affected, which
writing shall be signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Employment Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
14. AMENDMENTS. No amendments or variations of the terms and conditions of this
Employment Agreement shall be valid unless the same is in a writing that
specifies the term or
10
condition affected, which writing is signed by Executive and such officer of the
Company as may be specifically designated by the Board.
15. SEVERABILITY. The invalidity or unenforceability of any provision of this
Employment Agreement, whether in whole or in part, shall not in any way affect
the validity and/or enforceability of any other provision herein contained. Any
invalid or unenforceable provision shall be deemed severable to the extent of
any such invalidity or unenforceability.
16. ENTIRE AGREEMENT. This Employment Agreement sets forth the entire agreement
and understanding of the Company and Executive in respect of the terms and
conditions of Executive's employment after the Commencement Date, and supersedes
all prior employment agreements, covenants or representations or warranties,
whether oral or written, made by the parties. or any representative of the
Company, with respect to such terms and conditions of employment; provided,
however, that this Employment Agreement does not supersede or affect the Change
of Control Agreement between Executive and the Company.
17. NOTICES. All notices, communications and deliveries hereunder shall be made
in writing signed by or on behalf of the party making the same and shall be
delivered (a) personally; (b) by telecopy transmission with a copy sent by U.S.
mail, first class, postage prepaid; (c) by registered or certified mail (return
receipt requested); or (d) by any national overnight courier service (with
postage and other fees prepaid). All such notices, communications, and delivers
shall be addressed as follows:
If to the Company:
Danka Office Imaging Company
00000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and:
Danka Business Systems PLC
Xxxxxxx Xxxxx
000 Xxxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxx x00 OQH
Attn: Secretary
11
If to the Executive:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxxxxx, #0000
Xxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx
Kronish Xxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, X.X. 00000
Telephone - (000) 000-0000
Facsimile - (000) 000-0000
or to such other representative or at such other address of a party as such
party hereto may furnish to the other parties in writing. Any such notice,
communication or delivery shall be deemed given or made (a) on the date of
delivery if delivered in person (by courier service or otherwise), (b) upon
transmission by facsimile if receipt is confirmed by telephone, provided
transmission is made during regular business hours, or if not, the next business
day, or (c) on the fifth (5th) business day after it is mailed by registered or
certified mail.
18. GOVERNING LAW. This Employment Agreement shall be construed and enforced
pursuant to the laws of the State of Florida.
19. ARBITRATION. Any controversy or claim arising out of or relating to this
Employment Agreement or the breach thereof, other than a claim for injunctive
relief, shall be settled by arbitration in accordance with the Employment
Arbitration Rules of the American Arbitration Association (the "Rules") in
effect at the time demand for arbitration is made by any party. This arbitration
shall be conducted before three (3) arbitrators. One arbitrator shall be named
by the Company, a second shall be named by Executive, and the third arbitrator
shall be named by the two arbitrators so chosen. In the event that the third
arbitrator is not agreed upon, he or she shall be named by the American
Arbitration Association. The arbitration shall occur in St. Petersburg, Florida
or such other location as may be mutually agreed to by the Company and
Executive. The award made by all or a majority of the panel of arbitrators shall
be final and binding, and judgment may be entered in any court of law having
competent jurisdiction. The award is subject to confirmation, modification,
correction, or vacation only as explicitly provided in Title 9 of the United
States Code, as amended.
12
20. NO MITIGATION OR OFFSET. Executive shall not be required to mitigate the
amount of any severance or termination payment provided for in this Employment
Agreement by seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this Employment Agreement be reduced by any
compensation or income Executive may receive from any source. In addition, no
payments to Executive under this Employment Agreement may be subject to any
offset or setoff due to any claim the Company, or its parents, affiliates, or
subsidiaries, may have against Executive.
21. ATTORNEYS' FEES. The Company will promptly reimburse Executive for all
reasonable attorneys' fees (for counsel selected by Executive) and expenses
arising out of the negotiation of this Employment Agreement, as well as any
dispute under or in connection with this Employment Agreement (whether
litigation or arbitration) to the extent Executive is the prevailing party.
Executive shall in no way be responsible or liable for the Company's attorneys'
fees and expenses in any dispute arising under or in connection with this
Employment Agreement, and no award or order relating to this Employment
Agreement shall award the Company its attorneys' fees.
22. SOURCE OF PAYMENTS. All salary, bonus, severance, and all other payments to
Executive under this Employment Agreement shall be paid to Executive by the
Company through its U.S. payroll system and shall be made in cash in U.S.
dollars. If the Company should fail to make any such payment to Executive when
due, Danka Office Imaging, Danka Holding, and Danka Business Systems shall be
jointly and severally liable to Executive for such payments.
23. REPRESENTATION. The Company represents and warrants that it is fully
authorized and empowered to enter into this Employment Agreement and that the
performance of its obligations under this Employment Agreement will not violate
any agreement between it and any other person, firm, or organization.
24. COUNTERPARTS. This Employment Agreement may be executed in more than one (1)
counterpart and each counterpart shall be considered an original.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed by the
Company and Executive as of the date first above written.
SIGNATURES ON FOLLOWING PAGE
13
DANKA BUSINESS SYSTEMS PLC
By: /s/ Illegible
----------------------------
Name: Illegible
Title: CEO
DANKA HOLDING COMPANY
By: /s/ Illegible
----------------------------
Name: Illegible
Title: CEO
DANKA OFFICE IMAGING COMPANY
By: /s/ Illegible
----------------------------
Name: Illegible
Title: CEO
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
14
