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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of August 1, 1998, between Danka Office
Imaging (the "Company"), and Xxxxx Xxxxxxxx ("Executive").
W I T N E S S E T H :
WHEREAS, the Company wishes to provide for the employment of Executive as
President - United States Operations of the Company on the terms and conditions
herein set forth; and
WHEREAS, Executive wishes to serve in such capacity on the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Employment, Powers, Duties and Acceptance.
1.1 The Company hereby employs Executive, for the Term (as
hereinafter defined), to render services to the company as
President - United States Operations of the Company.
1.2 Executive hereby accepts the employment hereunder and agrees to
use his best efforts to carry out the duties and
responsibilities of President - United States Operations of the
Company and such additional assignments and duties (which may
include assignments and duties on behalf of the Company's
affiliates) as may be given to Executive by the Chief Executive
of the Company or his designee. Executive shall report directly
to the Chief Executive of the Company. Executive agrees to
discharge his obligations hereunder and perform his duties in
accordance with the general policies established by the Board of
Directors of the Company.
1.3 Executive shall be a full-time employee of the Company, and
subject to customary paid holidays and vacations, Executive
agrees to devote his full working time to the business of the
Company.
1.4 The principal place of employment of Executive hereunder shall
be at the offices of the company in the City of St. Petersburg,
Florida. Executive shall travel as may be required to discharge
his obligations and perform his duties hereunder.
1.5 Executive shall be entitled to 3 weeks of vacation with pay
during each calendar year of the Term.
2. Term of Employment. The term of Executive's employment under this
Agreement (the "Term") shall commence on the date hereof and shall
end, unless such employment is sooner terminated pursuant to Section
5 hereof, on August 1, 2001 (the "Termination Date").
3. Compensation.
3.1 During the Term, the Company shall pay Executive, as
compensation for services to be rendered pursuant to this
Agreement, a salary, payable in accordance with the company's
standard payroll practices, at the rate of $650,000 per annum
(the "Base Compensation"). Executive shall be eligible for
annual increases at the discretion of the Chief Executive.
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3.2 Executive shall have a target bonus of $250,000.00 based upon
achievement of established corporate corporate, division and
individual objectives as determined by the Chief Executive.
Executive will also be eligible for an additional "stretch"
bonus of $100,000.00 based upon established "stretch" objectives
approved by the Chief Executive, which will be upon the Company
obtaining 103% of its annual profit plan as approved by the
Board of Directors.
3.3 During the first year of this Agreement, Company shall guarantee
that Executive receive a minimum bonus of not less than
$100,000.00. Further, Company Shall grant Executive 80,000.00
ordinary stock options annually. Executive understands and
agrees that any granting of stock options is subject to Board of
Directors approval.
3.3.1 Further, on or before December 31, 1998, Company shall
pay Executive $132,000.00, which amount represents the
bonus Executive would have received from his prior
Employer.
3.4 Executive shall be reimbursed for any reasonable expenses
incurred by Executive in his relocation to the Tampa-St.
Petersburg metropolitan area (reasonable expenses as defined in
the Company's relocation plan). Such reasonable relocation
expenses shall be "grossed up" for tax and withholding purposes.
Company shall increase Executive's temporary living assistance
to 12 months and provide for up to three (3) house hunting trips
for Executive and his spouse. The Company shall assist Executive
in obtaining a bridge loan in an amount up to $250,000.00, said
bridge loan to be repaid by Executive within one (1) month of
Executive selling his residence in California. In the event
Executive voluntarily leaves the employment of the Company
within 24 months of the initial date herein, Executive agrees to
pay a prorated amount of Executive's total relocation cost based
on Executive's time with the Company.
3.5 Executive shall receive all of the fringe benefits and
perquisites of office made available to the officers of the
Company, including the following:
* Airline Club expenses - up to $1,000.00 annually
* Life Insurance Premium - up to $15,000.00 annually
3.6 Subject to Executive's satisfying the eligibility requirements
thereof, Executive shall be entitled to participate in and be
covered by any Executive Deferred Compensation Plan,
Supplemental Executive Retirement Plan, pension, life insurance,
long term disability insurance, health insurance,
hospitalization or other employee benefit plan established and
maintained by the company on the same basis as generally made
available to executives of the Company without limitation or
restriction by reason of this Agreement. Nothing herein shall be
deemed to require the Company to establish or maintain any
employee benefit plan whatsoever, and Company shall have the
right, in its sole and absolute discretion, to alter, amend,
modify, discontinue or terminate at any time any and all
employee benefit plans maintained by the Company.
4. Expenses. In addition to the compensation provided to be paid under
Section 3 hereof, the Company shall reimburse Executive for all
reasonable out-of-pocket expenses paid or incurred by Executive in
the performance of his duties hereunder upon submission of signed
itemized lists thereof on the forms used, and in accordance with the
procedures established from time to time, by the Company for that
purpose.
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4.1 Company shall provide, at Company's expense, a Mercedes or
Jaguar, or similar type automobile for Executive's use.
5. Termination. This Agreement may be terminated prior to the
Termination Date in accordance with the following:
5.1 If Executive shall die during the Term, this Agreement shall
terminate, except that Executive's legal representatives or
designated beneficiaries shall be entitled to receive the
compensation provided for herein to the last day of the month in
which his death occurs.
5.2 The Company shall have the right (without any liability to
Executive hereunder other than the payment of sum due through
the date of termination) to terminate the employment of
Executive, to relieve Executive of any and all functions as
President - United States Operations of the Company, and to
terminate his right to the compensation provided for herein for
cause. As used in this Section 5.2, the term "for cause" shall
mean and be limited to the following events:
5.2.1 Executive's material breach of any term or condition of
this Agreement, unless Executive cures such breach within
ten days after the company gives Executive notice of the
breach; or
5.2.2 Executive's commission of any crime that (i) constitutes
a felony in the jurisdiction involved or (ii) involves
loss or damage to or destruction of property of the
company or (iii) results in the incarceration of
Executive following his conviction for such crime; or
5.2.3 Executive's willful and material violation of any lawful
directions of the Chief Executive or Board of Directors
of the Company; or
5.2.4 Executive's failure or refusal to perform his duties in
accordance with Section 1 hereof; provided, however, that
no discharge "for cause" under this Section 5.3.4 shall
be deemed effective unless Executive shall have first
been given notice by the company advising Executive of
the specific acts or omissions alleged to constitute a
failure to perform his duties, and such failure continues
after Executive shall have had a reasonable opportunity
(which shall be defined as a period of time consisting or
at least three days from the date Executive receives said
notice from the company) to correct the acts or omissions
so complained of.
5.3 The Company shall have the right to terminate the employment of
Executive, to relieve Executive of any or all functions as the
company and to terminate his right to Base Compensation at any
time prior to the Termination Date upon notice to Executive. If
the Company shall terminate the employment of Executive for any
reason not specified in Section 5.1, or 5.2 hereof, the
Executive's sole remedy shall be to receive the following as and
for liquidated damages:
a) If the Company terminates the Agreement on or before
August 1, 2000, Company shall pay Executive his Base
Compensation through the term of the Agreement, or
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b) If the Company terminates the Agreement after August 1, 2000,
Company shall pay Executive his Base Compensation for the
next 12 succeeding months following termination provided that
at time of termination, Executive executes the General
Release and Waiver in, a form similar to Exhibit A.
Notwithstanding the foregoing, Executive shall not be entitled
to any liquidated damages hereunder if termination occurs prior
to the Termination Date and Company or any of their respective
affiliates agrees to employ Executive in an executive capacity
with powers and duties similar to those assigned to Executive
hereunder for a period equal to or greater than the balance of
the Term and to provide Executive during such period with
compensation and benefits equivalent to those which he would
have received hereunder had termination not occurred.
6. Non-Competition and Confidentiality
6.1 As used in this Section 6, the term "Restricted Area" shall
mean: (i) during the Term, the entire world, and (ii) during the
six months following the termination of Executive's employment
hereunder for any reason specified in Section 5.3 hereof, the
area within 50 miles of the location of any business activity
conducted by the Company, any constituent partner of the Company
or any of their respective parents, subsidiaries or affiliates.
During the Term and for a period of six months following the
termination of Executive's employment hereunder for any reason
specified in Section 5.3 hereof, 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; he shall
not engage in such business on his own account in the Restricted
Area; and he shall not become interested 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 6 shall be
deemed to prohibit Executive from acquiring, solely as an
investment, a less than one percent interest in the equity of
any publicly traded corporation or limited partnership.
6.2 Executive shall not, at any time hereafter, disclose to any
person, firm or corporation 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, affiliates. Without limiting the
generality of the foregoing, the parties hereto acknowledge and
agree that all information not otherwise generally known to the
public relating to each of (i) this Agreement, (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, except to the extent necessary to conduce the business
of the company, or to comply with law or the valid order of a
governmental agency or court of competent jurisdiction.
6.3 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
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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 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.
6.4 Executive, except within the course of the performance of his
duties hereunder, shall not at any time while he is in the
employ of the company, any constituent partner of the Company or
any of their respective parents, subsidiaries, or affiliates and
for two years thereafter (I) employ any individual who was
employed by the company, any constituent partner of the company
or any of their respective parents, subsidiaries, affiliates, at
any time during the period of two years prior to the date
Executive intends to employ such person or (ii) in any way
cause, influence, or participate in the employment of any
individual which would be contrary to the company's best
interests, as determined by the Company in its sole discretion.
6.5 Executive's services are unique and any breach or threatened
breach by Executive of any provision of this Section 6 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 6, the
Company shall be entitled to injunctive relief restraining
Executive and any business, firm, partnership, individual,
corporation or entity participating in such breach or threatened
breach. Nothing herein shall be construed as prohibiting the
company form pursuing any other remedies available at law or in
equity for such breach or threatened breach, including the
recovery of damages and the immediate termination of the
employment of Executive hereunder.
6.6 If any of the provisions of or covenants contained in this
Section 6 are hereafter construed to be invalid or unenforceable
in a particular jurisdiction, the same shall not affect the
remainder of the provisions or the enforceability thereof in
that jurisdiction, which shall be given full effect, without
regard to the invalidity or unenforceability thereof in a
particular jurisdiction because of the duration and/or scope of
such provision or covenant in that jurisdiction and, in its
reduced form, said provision or covenant shall be enforceable.
In all other jurisdictions this Section 6 shall at all times
remain in full force and effect.
7. Representations and Warranties. Executive hereby represents and
warrants to the company as follows:
7.1 Executive is an individual residing at the address set forth in
Section 8.2 hereof.
7.2 Executive has full power and authority to enter into this
Agreement and the execution and delivery of this Agreement by
Executive will not conflict with or result in the breach of or a
default under any agreement or other instrument to which
Executive is a party.
7.3 Executive is not a party to any covenant not-to-compete,
non-disclosure agreement or other similar obligation which is
inconsistent with, or which could impair the performance of,
Executive's duties hereunder.
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8. Notices. All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and
shall be deemed to have been duly given if delivered personally or
sent by prepaid telegram, or mailed first-class, postage prepaid, by
registered or certified mail (notices sent by telegram or mailed
shall be deemed to have been given on the date sent), as follows (or
to such other address as either party shall designate by notice in
writing to the other in accordance herewith):
8.1 If to the Company:
Danka Office Imaging Company
00000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: General Counsel
8.2 If to Executive:
Xxxxx Xxxxxxxx
9. General.
9.1 The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or
interpretation of this Agreement.
9.2 This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings
written or oral, relating to the subject matter hereof. No
representation, promise or inducement has been made by either
party that is not embodied in this Agreement, and neither party
shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
9.3 This Agreement, and Executive's rights and obligations
hereunder, may not be assigned or otherwise transferred by
Executive. The Company may assign its rights hereunder to any
parent, subsidiary, or affiliate and in connection with any
sale, transfer or other disposition of all or substantially all
of its businesses or assets. Upon such assignment, the assignee
thereunder shall be required to assume the obligations of
Executive hereunder and, upon such assumption, the Company shall
be relieved of its obligations hereunder.
9.4 This Agreement constitutes the entire agreement between the
parties with respect to the transactions contemplated hereby and
may be amended, modified, superseded, canceled, renewed or
extended and the terms or covenants hereof may be waived, only
by a written instrument executed by both of the parties hereto,
or in the case of a waiver, by the party waiving compliance. The
failure of either party at any time or times to require
performance of any provision hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by
either party of the breach of any term or covenant contained in
this Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such
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breach, or a waiver of the breach of any other term or covenant
contained in this Agreement.
9.5 This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Florida applicable to agreements
entered into and wholly performed therein.
9.6 This Agreement may be executed in any number of counterpart
copies, each of which shall be deemed an original, but which
together shall constitute a single instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DANKA OFFICE IMAGING COMPANY
By:
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Title:
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Executive
By:
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Witness:
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EXHIBIT A
RELEASE OF CLAIMS
DEFINITIONS: I, Xxxxx Xxxxxxxx, ("Employee"), intend all words used in this
Release to have their plain meaning in ordinary English. Technical legal words
are not needed to describe what I mean. Specific terms I use in this Release
have the following meanings:
A. I, Me, and My include both me and anyone who has or obtains any legal
rights or claims through me.
B. Employer, as used herein, shall at all times mean Danka Corporation or
any parent company, subsidiaries, affiliated companies or entities and
their employees, officers, directors, successors and assigns, its
attorneys, consultants and agents, whether in their individual or
official capacities.
C. My Claims means all of the rights I have to any relief of any kind
from Employer, whether or not I now know about those rights, arising
out of or in any way related to my employment with Employer, any my
termination of employment, or any employee benefit plan, including,
but not limited to, common law, or equitable claims, claims for
violation or breach of any employment agreement or understanding;
fraud or misrepresentation; and any statutory claims including alleged
violations of the, the federal Age Discrimination in Employment Act,
the Americans with Disabilities Act, or any other federal, state, or
local civil rights laws or ordinances, defamation; intentional or
negligent infliction of emotional distress; breach of the covenant of
good faith and fair dealing; promissory estoppel; negligence, wrongful
termination of employment, any any other claims.
AGREEMENT TO RELEASE MY CLAIMS. I am receiving a substantial amount of money,
among other things, from Employer as consideration for my Release of claims. I
agree to give up all My Claims against the Employer as defined above. I will
not bring any lawsuits, file any charges, complaints, or notices, or make any
other demands against the Employer or any of its employees or agents based on
any alleged claims. The money I am receiving is a full and fair payment for the
release of all My Claims.
ADDITIONAL AGREEMENTS AND UNDERSTANDINGS. Even though the Employer is paying me
to release My Claims, the Employer expressly denies that it is responsible or
legally obligated for My Claims or that is has engaged in any wrongdoing.
I understand that I may have twenty-one (21) calendar days from the day
that I receive this Release, not counting the day upon which I receive it, to
consider whether I wish to sign this Release. I further understand that the
Employer recommends that I consult with an attorney before executing this
Release. I agree that if I sign this Release before the end of the twenty-one
(21) day period, it is because I have decided that I have already had
sufficient time to decide whether to sign the Release.
I understand that I may rescind (that is, cancel) this Release within
seven (7) calendar days of signing it to reinstate federal civil rights claims
(if any). To be effective, my rescission must be in writing and delivered to
the Employer, Attention General Counsel, Danka, 00000 Xxxxx Xxxxxx Xxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx, 00000, either by hand or by mail within the required
period. If sent by mail, the rescission must be:
1. Postmarked within the relevant period;
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2. Properly addressed to the General Counsel; and
3. Sent by certified mail, return receipt requested.
I have read this Release carefully and understand all its terms. I
have had the opportunity to review this Release with my own attorney.
In agreeing to sign this Release, I have not relied on any statements
or explanations made by the Employer or its agents other than those
set forth in the Release and Employment Agreement.
I understand and agree that this Release and Employment Agreement to
which it is attached contain all the agreements between the Employer and me. We
have no other written or oral agreements.
Dated:
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Witness:
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