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EXHIBIT 10.13
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Employment
Agreement") is made and entered into as of the ____ day of September, 1999, by
and among Danka Business Systems PLC, ("Danka Business Systems"), and Xxxxx
Xxxxxxx, an individual ("Executive").
WITNESSETH:
WHEREAS, Executive is a party to an Employment Agreement dated as of
August 28, 1998 between the Company and the Executive as amended by a letter
agreement dated February 2, 1999 (collectively, "Prior Employment Agreement")
and Executive is also party to a Change of Control Agreement, dated as of
November 6, 1998 by and among the Company, Danka Office Imaging Company and the
Executive ("Change of Control Agreement");
WHEREAS, the Company wishes to assure itself of the services of
Executive, on the terms and conditions set forth herein; and
WHEREAS, 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:
Section 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.
Section 2. CAPACITY AND DUTIES. Executive is and shall be employed in
the capacity of Chief Executive Officer of the Company and shall have such
other duties, responsibilities and authorities as are assigned to him by the
Board of Directors of Danka Business Systems (the "Board") as long as such
additional duties, responsibilities and authorities are consistent with
Executive's position and level of authority as the Chief Executive Officer of
the Company. Executive may serve as a director of any direct or indirect
subsidiary of Danka Business Systems, without additional consideration unless
agreed otherwise by the Board, but Executive's failure or refusal to serve on
the Board of one or more subsidiaries shall not constitute a breach of this
Agreement. Executive shall be nominated by the Board to serve as director and
executive member of the Board and the Company shall use its best efforts to
cause the Executive to be elected as a director and executive member of the
Board.
Section 3. TERM OF EMPLOYMENT. The term of employment of Executive by
the Company pursuant to this Employment Agreement shall be for the period (the
"Employment Period") commencing on September 1, 1999 (the "Commencement Date"),
and ending on August 31, 2002 or such earlier date that Executive's employment
is terminated in accordance with the provisions of this Employment Agreement.
Section 4. PLACE OF EMPLOYMENT. Executive's principal place of work
shall be located in the Tampa Bay, Florida metropolitan area. The parties
acknowledge that this is consistent with the extensive national and
international business travel which may be required of Executive in connection
with his performance of his duties under this Agreement.
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Section 5. BASE SALARY AND BONUS. During the Employment Period and
subject to all the terms and conditions of this Employment Agreement, the
Company shall pay Executive a base salary at an annual rate of not less than
$800,000 per annum, payable in a manner consistent with the Company's payroll
procedures for U.S. salaried employees. The Human Resources Committee of the
Board (the "H.R. Committee") shall review Executive's annual base salary on or
before the beginning of each fiscal year of the Company beginning subsequent to
March 31, 2000 in which this Agreement is in effect and may increase
Executive's annual base salary from time to time as the H.R. Committee deems to
be appropriate.
In addition to the annual base salary, Executive shall be entitled to
receive an annual bonus opportunity under a performance bonus plan developed by
the H.R. Committee. The H.R. Committee shall establish during the first quarter
of each fiscal year financial performance targets for such fiscal year, stated
in terms of net income, diluted earnings per share, operating cash flow or such
other measures as may be selected by the H.R. Committee, as well as the annual
bonuses available upon achievement of target, threshold and maximum levels of
performance. The bonus available upon achievement of the target level shall be
one hundred percent (100%) of Executive's annual base salary, and the bonus
available for meeting or exceeding maximum level of performance shall be two
hundred percent (200%) of Executive's annual base salary. Subject to H.R.
Committee's certification of the Company's achievement of the relevant
financial goals for the fiscal year at not less than the threshold level,
payment of each such annual bonus shall be made to Executive in cash (net of
applicable taxes) as promptly after the end of the relevant fiscal year as the
H.R. Committee is able to certify the achievement of the applicable target
performance goals, subject to any deferral election made by Executive under the
terms of the Company's deferred compensation plan for U.S. executives.
All salary and bonus payments to Executive under this Agreement shall
be paid to Executive by Danka Office Imaging Company, through its U.S. payroll
system. If Danka Office Imaging Company should fail to make any such payment to
Executive when due, Danka Holding Company, Danka Office Imaging Company and
Danka Business Systems shall be jointly and severally liable to Executive.
Section 6. ADDITIONAL COMPENSATION AND BENEFITS. During the
Employment Period, the Company shall pay to or provide Executive such other
compensation and benefits as are established by or approved by the H.R.
Committee, including the following additional compensation and welfare and
fringe benefits:
(a) Stock Options. Executive shall be eligible to receive stock
option awards, as described in Section 7 below, on such basis and
at such times as the H.R. Committee may determine to be equitable
and consistent with Executive's position and performance.
(b) Medical Insurance. The Company shall provide Executive and his
dependents with health insurance coverage no less favorable than
that from time to time made available to other key employees of
the Company located in the United States.
(c) Vacation. Executive shall be entitled to at least four (4) weeks
of vacation during each year during the term of this Agreement,
prorated for partial years.
(d) Business Expenses. The Company shall 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).
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(e) Car. The Company shall provide, at the Company's expense, a
Mercedes or Jaguar, or similar type automobile for Executive's
use.
In addition to the benefits provided pursuant to the preceding
paragraphs of this Section 6, the Executive shall be eligible to participate in
all executive compensation and retirement plans of the Company applicable
generally to officers of the Company located in the United States, including,
without limitation, airline club expenses up to $1,000 annually and life
insurance premiums up to $15,000 annually, and in such welfare benefit plans,
programs, practices and policies of the Company as are generally applicable to
other United States employees from time to time.
Section 7. STOCK OPTIONS. During the Employment Period, Executive
shall be granted additional stock options with respect to American Depository
Shares representing ordinary shares of Danka Business Systems ("ADSs") on an
equitable basis consistent with his position, provided that Executive has
continued his employment with the Company through the relevant grant date and
has not given a Notice of Termination as defined in Section 10 below.
All of the stock options of Executive shall be subject to the
following terms and conditions:
(a) The Options granted to Executive shall become fully vested on an
accelerated basis upon: (1) expiration of the Employment Period
(or, if such original Employment Period is extended or renewed by
mutual agreement of Executive and the Company, expiration of the
final renewal period); (2) Executive's death or permanent
disability; (3) an involuntary termination of Executive's
employment other than for Cause [as defined in Section 10]; (4)
Executive's voluntary termination of employment for Good Reason
[as defined in Section 10 below]; or (5) the date the Company
gives Executive a Notice to Terminate [other than for Cause as
defined in Section 10].
(b) Upon termination of Executive's employment for Cause [as defined
in Section 10], any unexercised Options held by Executive
(including both vested and unvested Options) shall be forfeited
immediately. Upon delivery of a Notice of Termination by
Executive or other voluntary termination by Executive [other than
for Good Reason as defined in Section 10.02], any vested but
unexercised options held by Executive shall continue to be
exercisable during the period of twelve (12) months following the
date of termination. If Executive's options vest on an
accelerated basis pursuant to paragraph (a), or if Executive's
employment terminates at the expiration of the Employment Period,
the options not exercised by the termination date shall continue
to be exercisable for a period of thirty-six (36) months
following such date (but not later than the expiration of the
option's original ten (10) year term). Such continued right to
exercise the options shall be subject to Executive's adherence to
the terms of such non-competition, confidentiality and similar
restrictive covenants as the H.R. Committee may require to be
included in the stock option certificates, provided that such
restrictive covenants shall be deemed to be waived upon a Change
of Control [as defined in the Change of Control Agreement].
(c) At the Committee's discretions, the options may be granted for
the equivalent number of ordinary shares of Danka Business
Systems, instead of ADSs.
Section 8. TERMINATION BY THE COMPANY OR BY EXECUTIVE. This
Employment Agreement may be terminated by the Board of Danka Business Systems
or by Executive upon one (1) year's written notice, provided that Danka
Business Systems or Executive, as the case may be, shall
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give Notice of Termination (as hereinafter defined). Compensation paid to
Executive during the one-year notice period following the giving of the Notice
of Termination shall be considered to be part of the severance pay described in
Section 9 of this Employment Agreement.
This Employment Agreement may be terminated upon six months' written
notice by Danka Business Systems by reason of the Disability (as hereinafter
defined) of Executive. This Employment Agreement may be terminated by the Board
of Danka Business Systems immediately upon giving Notice of Termination for
Cause (as hereinafter defined) and may be terminated by Executive for Good
Reason (as hereinafter defined) immediately upon giving Notice of Termination,
provided that the Company shall in either case pay to Executive the
compensation and other benefits described in Section 9 of this Employment
Agreement.
Section 9. PAYMENTS UPON TERMINATION.
(a) If Executive's employment is terminated during the term of this
Agreement, either by the Board or by Executive, or in the event of death or
disability, Executive shall be entitled to receive his base salary accrued
through the date of termination, any accrued but unpaid vacation pay for the
year of the termination, plus any bonus earned but not previously paid with
respect to fiscal years preceding the termination date. If Executive's
employment is terminated during the term of this Agreement by Executive for
Good Reason (as defined in Section 10 below), or by the Company other than for
Cause [as defined in Section 10], then Executive shall also receive the
additional termination pay and benefits set forth in Sections 9(b), 9(c), 11 or
other applicable provisions of this Employment Agreement.
(b) If Executive's employment is involuntarily terminated by the
Company for any reason other than death, disability or Cause (as defined in
Section 10), including by giving a Notice of Termination to Executive, or if
the Executive gives a Notice of Termination for Good Reason (as defined in
Section 10), the Company shall also be obligated to provide Executive with the
following severance compensation:
(i) The Company shall pay to Executive (subject to withholding of
applicable taxes) termination payments, in an amount equal to the sum
of (A) two (2) full years of Executive's annual base salary, at the
rate in effect on the date the Notice of Termination is given, and (B)
twice the target annual bonus (i.e., twice the annual target bonus of
100 percent of annual base salary) which would be payable to Executive
for the fiscal year in which the Notice of Termination is given if the
Company's financial performance targets were deemed to be satisfied at
the budgeted target level for such fiscal year. The Company shall
deliver a lump sum payment equal to one-half (1/2) of such amount
(subject to withholding of applicable taxes) to Executive by wire
transfer or cashier's check within ten (10) business days after the
termination of his employment. The remainder shall be paid to
Executive in a series of twelve (12) equal monthly payments, beginning
on the first anniversary of the date of termination. These payments
shall be offset by any amounts the Company pays to the Executive as
annual salary or bonus for his services during the one-year notice
period following the date the Notice of Termination was given, but
shall not be offset by any amounts Executive may receive as
compensation for services he performs for any other employer after his
employment with the Company terminates.
(ii) In addition to these termination payments, Executive shall be
entitled to receive a pro rata annual bonus from the Company for the
fiscal year which includes the date of termination, calculated by
determining the performance bonus earned for the fiscal year which
includes the
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date of termination, based on the extent to which the Company actually
satisfies the relevant financial performance targets for the fiscal
year by the end of such fiscal year, and multiplying this amount by a
percentage equal to the ratio of the number of days worked by
Executive during the fiscal year of the termination to the total
number of work days during such fiscal year. This pro rata bonus shall
be paid to Executive (subject to withholding at applicable taxes)
promptly after the end of the fiscal year, once the H.R. Committee has
certified the Company's achievement of the relevant performance
targets.
(iii) The Company shall continue to provide the Executive and his wife
with coverage under all medical, hospitalization, life and other
insurance benefits being provided to Executive at the date the Notice
of Termination is given, for a period of up to twenty-four (24) months
after the date of termination; provided that the Company shall have no
obligation to continue to provide Executive with these benefits for
any periods after the earlier of (A) the expiration of the Employment
Period, or (B) the date Executive obtains comparable benefits (with no
significant pre-existing condition exclusions) as a result of
Executive's employment in a new position.
(iv) Any stock options awarded to Executive under any stock option
plan or scheme maintained by the Company shall (A) if not previously
vested, immediately become fully vested and exercisable in full, and
(B) be deemed to be amended to permit their exercise by Executive at
any time during the period of thirty-six (36) months following the
date of termination (but no later than the expiration of any such
stock option's original ten-year term), subject to the Executive's
adherence to the terms of such non-competition, confidentiality and
similar restrictive covenants as the H.R. Committee may require to be
included in the relevant stock option agreements.
(v) The Executive shall also receive any vested benefits payable to
him under the terms of any deferred compensation, retirement,
incentive or other benefit plan maintained by the Company, payable in
accordance with the terms of the applicable plan.
(c) If Executive's employment is terminated by the Board for Cause,
the amount Executive shall be entitled to receive from the Company shall be
limited to his 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 fiscal year of Danka Business Systems most
recently ended, and any vested benefits payable to Executive under the terms of
any deferred compensation, retirement, stock option or other incentive plans
maintained by the Company.
(d) If Executive voluntarily terminates his employment by giving
Notice of Termination before the end of the Employment Period (other than for
Good Reason as defined in Section 10.02), or retires at the end of the
Employment Period, the amount Executive shall be entitled to receive from the
Company shall be limited to his base salary accrued through the date of
termination, any accrued but unpaid vacation pay for the year, any bonus earned
but not previously paid with respect to the fiscal year of Danka Business
Systems most recently ended, and any other vested benefits payable to the
Executive under the terms of any deferred compensation, retirement, stock
option or other incentive plans of the Company.
(e) All payments to Executive under this Section 9 shall be paid by
Danka Office Imaging Company, but in the event Danka Office Imaging Company
should fail to make any such payment when due, Danka Office Imaging Company,
Danka Holding and Danka Business Systems shall be jointly and severally liable
to Executive.
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(f) Executive shall not be required to mitigate amounts or benefits
payable under this Employment Agreement by seeking other employment or
otherwise.
Section 10. 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 10 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:
10.01 Disability. "Disability" shall mean a physical or
mental illness which, in the judgment of the Company after
consultation with the licensed physician attending Executive, impairs
Executive's ability to substantially perform his duties under this
Employment Agreement as an employee and as a result of which he shall
have been unable to perform his duties for the Company on a full-time
basis for six (6) consecutive months.
10.02 Good Reason. "Good Reason" shall mean the occurrence
of any of the following events without Executive's prior express
written consent: (i) any material change in Executive's status, title,
authorities or responsibilities (including reporting responsibilities)
under this Employment Agreement which represents a demotion from such
status, title, position or responsibilities (including reporting
responsibilities); the assignment to him of any duties or work
responsibilities which are materially inconsistent with his status,
title, position or work responsibilities set forth in this Employment
Agreement or which are materially inconsistent with the status, title,
position or work responsibilities of a chief executive officer of a
United Kingdom/United States publicly traded corporation; or any
removal of Executive from, or failure to appoint, elect, reappoint or
reelect Executive to, any of such positions, including a failure to
reelect Executive as an Executive Director, except as a result of his
death or Disability; (ii) the relocation of the principal office of
the Company or the reassignment of Executive to a location more than
thirty (30) miles from St. Petersburg, Florida; (iii) the failure by
the Company to continue in effect any incentive, bonus or other
compensation plan in which Executive participates, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan)
has been made with respect to the failure to continue such plan, or
the failure by the Company to continue Executive's participation
therein, or any action by the Company which would directly or
indirectly materially reduce his participation therein or reward
opportunities thereunder; provided, however, that Executive continues
to meet substantially all eligibility requirements thereof; and
further provided, that if the terms of any incentive compensation plan
assign the H.R. Committee discretion to grant awards, any exercise of
such discretion by the H.R. Committee that does not result in an award
to Executive for a relevant period shall not by itself constitute
"Good Reason"; (iv) the failure by the Company to continue in effect
any employee benefit plan (including any medical, hospitalization,
life insurance, disability or other group benefit plan in which
Executive participates), or any material fringe benefit or perquisite
enjoyed by him unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to the
failure to continue such plan, or the failure by the Company to
continue Executive's participation therein, or any action by the
Company which would directly or indirectly materially reduce his
participation therein or reward opportunities thereunder, or the
failure by the Company to provide him with the benefits to which he
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is entitled under this Employment Agreement; provided, however, that
Executive continues to meet substantially all eligibility requirements
thereof; (v) any other material breach by the Company of any provision
of this Employment Agreement; or (vi) any purported termination of
Executive's employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of this Employment Agreement,
and for purposes of this Employment Agreement, no such purported
termination shall be effective; or (vii) the failure of the Company to
obtain a satisfactory agreement from any successor or assignee of the
Company to assume and agree to perform this Employment Agreement.
10.03 Cause. For purposes of this Agreement, "Cause" shall
mean and be limited to (i) Executive being convicted of a felony (or
entering a guilty or nolo contendere plea to such a crime); or (ii)
Executive being convicted of any lesser crime committed in connection
with the performance of his duties hereunder involving fraud or moral
turpitude; or (iii) the intentional and willful failure by Executive
to substantially perform his duties hereunder as directed by the Board
(other than any such failure resulting from Executive's incapacity due
to physical or mental disability) after a written demand for
substantial performance is made on Executive by the Board and such
failure continues after Executive shall have had reasonable
opportunity to correct the acts or omissions so complained of.
10.04 Notice of Termination. "Notice of Termination" shall
mean a written notice which shall indicate the specific termination
provision in this Employment Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated; provided, however, no such purported termination shall be
effective without such Notice of Termination; provided further,
however, any purported termination by the Company or by Executive
shall be communicated by a Notice of Termination to the other party
hereto in accordance with Section 13 of this Employment Agreement.
Section 11. DEATH. Upon Executive's death during the Employment
Period, this Employment Agreement shall terminate immediately upon the date of
Executive's death, provided that the Company shall:
(a) pay to Executive's estate Executive's base salary accrued through
the date of death, accrued but unpaid vacation pay for the year
of death, any bonus earned but unpaid with respect to periods
prior to the date of death, and a pro rata bonus for the fiscal
year which includes the date of death, calculated by multiplying
the performance bonus payable for the fiscal year, based on the
Company's actual satisfaction of its performance goals for the
year, by a percentage equal to the ratio of the number of days
Executive worked prior to his death to the total number of work
days during the fiscal year.
(b) pay any death benefits owed in respect of Executive under the
terms of any life insurance plan, retirement or deferred
compensation plan, or other benefit plan of the Company, to
Executive's surviving spouse or such other beneficiary as
Executive has designated.
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Section 12. NON-COMPETITION AND CONFIDENTIALITY. As used in this
Section, the term "Restricted Area" shall mean, during the Employment Period,
and during the twenty-four (24) months following the termination of Executive's
employment hereunder for any reason specified in the Employment Agreement, the
entire world. During the Employment Period and for a period of twenty-four
months following the termination of Executive's employment hereunder for any
reason specified in the Employment Agreement, 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, 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 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.
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 24 months thereafter (i) employ any
individual who is then employed by the Company, any constituent partner of the
Company or any of their respective parents, subsidiaries, affiliates (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.
Executive's services are unique and any breach or threatened breach by
Executive of any provision of this Section 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, 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 from pursuing any other remedies available at law or in
equity or such breach or threatened breach, including the recovery of damages
and the immediate termination of the employment of Executive hereunder.
If any of the provisions of or covenants contained in this Section 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 jurisdiction this Section shall at all times
remain in full force and effect.
Section 13. NOTICES. For the purposes of this Employment Agreement,
notices and all other communications provided for in the Employment Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or sent by certified mail, return receipt requested, postage prepaid,
or by expedited (overnight) courier with established national reputation,
shipping prepaid or billed to sender, in either case addressed to the
respective addresses last given by each party to the other (provided that all
notices to the Company shall be directed to the attention of the Board with a
copy to the Secretary of the Company) or to such other address as either party
may have furnished to the other in writing in accordance herewith. All notices
and communication shall be deemed to have been received on the date of delivery
thereof, on the third business day after the mailing thereof, or on the second
day after deposit thereof with an expedited courier service, except that notice
of change of address shall be effective only upon receipt.
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Section 14. SUCCESSORS. This Employment Agreement shall be binding on
the Company and any successor to any of its businesses or to a substantial
fraction of its business assets. Without limiting the effect of the prior
sentence, the Company shall use its best efforts to require any successor or
assigns (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Employment Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place. As used in this
Employment Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor or assignee to its business and/or a substantial fraction of
its assets as aforesaid which assumes and agrees to perform this Employment
Agreement or which is otherwise obligated under this Agreement, by operation of
law or otherwise.
Section 15. 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. If Executive should die while any amounts would still be
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Employment Agreement to Executive's estate.
Section 16. 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 writing and 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.
Section 17. HEADINGS. Headings used in this Agreement are for
convenience only and shall not be used to interpret or construe its provisions.
Section 18. WAIVER OF BREACH. The waiver of either the Company or
Executive of a breach of any provision of this Employment Agreement shall not
operate or be construed as a waiver of any subsequent breach by either the
Company or Executive.
Section 19. AMENDMENTS. No amendments or variations of the terms and
conditions of this Employment Agreement shall be valid unless the same is in
writing and signed by all of the parties hereto.
Section 20. 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.
Section 21. ENTIRE AGREEMENT. Except for the Change of Control
Agreement and the options and special cash bonus provided for in the prior
Employment 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.
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Section 22. GOVERNING LAW. This Employment Agreement shall be
construed and enforced pursuant to the laws of the State of Florida.
Section 23. ARBITRATION. Any controversy or claim arising out of or
relating to this Employment Agreement or any transactions provided for herein,
or the breach thereof, other than a claim for injunctive relief shall be
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules") in effect at the time demand
for arbitration is made by any party. 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. 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. The prevailing party shall be entitled to an award of pre- and
post-award interest as well as reasonable attorneys' fees, costs and expenses
incurred in connection with the arbitration and any judicial proceedings
related thereto.
Section 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.
"COMPANY" - DANKA BUSINESS SYSTEMS PLC
By:
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DANKA HOLDING COMPANY
By:
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"EXECUTIVE"
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Xxxxx Xxxxxxx
DANKA OFFICE IMAGING COMPANY
By:
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