Exhibit 10.38
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Employment Agreement") is made and
entered into as of the 26 day of July, 2001, by and among Danka Office Imaging
Company ("Danka Office Imaging"), Danka Business Systems PLC ("Danka Business
Systems"), Danka Holding Company ("Danka Holding"), and Xxxx Xxxxx, 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
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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
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President, and Corporate Executive Vice-President, Office Imaging Division
reporting to the Chief Executive Officer of the Company. Executive shall direct
and oversee the management and operations of the Office Imaging SBU.
3. EMPLOYMENT TERM.
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(a) Term. Employment of Executive by the Company pursuant to this
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Employment Agreement shall begin on August 1, 2001, 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
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located in the St. Petersburg, Florida metropolitan area.
5. COMPENSATION.
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(a) Salary. Beginning on August 1, 2001 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 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.
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(b) Performance Bonuses. In addition to the Annual Base Salary,
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Executive shall be entitled to receive an annual bonus under the
performance bonus plan (the "Performance Bonus Plan") approved by the
H.R. Committee, beginning in the Company's Fiscal Year 2002, which
begins April 1, 2001. Executive's bonus plan payments shall begin with
the Company's third fiscal quarter (10/1/01). However; Executive shall
be entitled to credit for the first two fiscal quarters in determining
the bonus payable at the end of the fiscal year per the Company's
Management Incentive Plan. 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 equal
to $250,000.00. 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. 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 $50,000.00
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within ten business (10) days of execution of this Agreement.
Executive shall receive a bonus of $75,000.00 upon the permanent
relocation of his family to the St. Petersburg area. Executive shall
receive a bonus of $100,000.00 on the one-year anniversary of his
execution of this Agreement if Executive remains employed by Company
on such date. 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 one year period from the date of payment). (e.g. If Executive
resigns 6 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
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shall pay to or provide Executive with the following additional compensation and
benefits:
(a) Stock Options.
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(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.
(ii) Executive shall receive from the Company a registered stock
option grant in the amount of 400,000 American Depository Shares
("ADSs") representing ordinary shares of Danka Business Systems
PLC. Vesting of 350,000 of such options will be in accordance
with the Company Stock Option Plan (1/3 per year for 3 years).
Executive shall be entitled to immediate vesting of 25,000
options upon achievement of 100% of the FY2002 goals for the
Office Imaging SBU and immediate vesting of 25,000 options
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upon achievement of 125% FY2002 goals for the Office Imaging SBU.
In the event the above goals are not met, these 50,000 options
shall become vested on the fifth anniversary of the date such
options are granted. 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. The exercise
price of the options set on the date such grant is approved by
the H.R. Committee.
(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
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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
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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
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Company's 401K plan in accordance with its terms and conditions.
(e) Vacation. Executive shall be entitled to at least four (4) weeks
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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.
(f) Business Expenses. The Company shall promptly reimburse Executive
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for all reasonable, ordinary and necessary expenses he incurs in
connection with his
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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) Relocation Expenses. The Company shall provide relocation
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assistance in accordance with the Company's standard relocation
benefits plan. In addition to the benefits provided in the Company
relocation benefits plan, beginning August 1, 2001 and continuing for a
period of five (5) months, the Company shall promptly (i) reimburse
Executive up to $3,000 per month for the temporary living and travel
expenses associated with his relocation, and (ii) pay Executive a
"gross up" payment sufficient to pay any federal, state and local
income tax and social security, or other employment tax on the amounts
paid under this Section 6(g), 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 for
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. Executive shall pay Company a pro rated
portion of such relocation and temporary living expenses (as per
Section 5 (c)) herein (using a three-year period from the date of
payment), upon Executive's voluntary or for cause termination.
(h) Indemnification. The Company will, to the fullest extent
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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.
(i) Other Employee Benefits. Executive shall also be entitled to any
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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.
(j) Housing Bonus. Company shall pay Executive a housing bonus of
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$100,000.00 (grossed up for tax purposes) upon the earlier of his
closing the sale of his existing home in Poway, California, or his new
home in the St. Petersburg, Florida area. Executive shall pay Company a
pro rated portion of such housing bonus (as per Section 5(c) herein
(using a three-year period from the date of payment), upon Executive's
voluntary or for cause termination.
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7. TERMINATION BY THE COMPANY OR BY EXECUTIVE. This Employment Agreement may
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be terminated as follows:
(a) By the Company.
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(i) For Cause. The Company may terminate this Employment Agreement
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and Executive's employment with the Company at any time for Cause (as
defined in Section 9) ("Cause Termination"); provided, however, that
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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
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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").
(b) Death or Disability. This Employment Agreement and Executive's
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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.
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(i) For Good Reason. Executive may terminate this Employment
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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
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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.
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(a) Company Notice Termination and Good Reason Termination. If the Company
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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), within the first year of employment the
Company shall pay to Executive (subject to withholding of applicable taxes)
a severance of Three Hundred Seventy Five
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Thousand Dollars ($375,000.00). If such termination occurs after the first
year of employment Executive shall receive a severance of Seven Hundred
Fifty Thousand Dollars ($750,000.00). Such severance shall be paid in equal
installments over twelve (12) 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. 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 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 Company Notice
Termination or Good Reason Termination. If employee is terminated without
cause before August 1, 2002, and Executive accepts another position within
one (1) year, Company shall provide Executive with relocation
reimbursement, to the extent not fully reimbursed by Executive's new
employer, per the Company policy, not to exceed $50,000.
(b) Cause Termination and Executive Notice Termination. If Executive's
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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
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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
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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 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
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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"
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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 gross negligence in, or willful failure to
substantially perform 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
failure has a material adverse effect on the Company; provided,
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however, that such gross negligence or willful failure shall not be
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considered Cause unless it continues after the Company has made a
written demand for substantial performance on Executive and Executive
has failed to correct the acts or omissions complained of after a
reasonable opportunity (of not less than sixty (60) days) to do so.
(b) Disability. For purposes of this Employment Agreement, the term
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"Disability" shall mean the inability of Executive to perform Executive's
essential duties and
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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.
(C) Good Reason. For purposes of this Employment Agreement, the
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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) there has been an adverse or material change in
Executive's status, position, duties, responsibilities
(including reporting responsibilities), authority, or titles,
which change was not withdrawn or rescinded by the Company
within thirty (30) days after receiving written notice of
objection to such change from Executive;
(v) the assignment to Executive of any duties or work
responsibilities, or any instructions, orders, or directives
which are inconsistent with his status, position, duties,
responsibilities (including reporting responsibilities),
authority, or titles as set forth in this Employment Agreement
or as required by law.
(vi) any removal of Executive from, or the failure to
appoint, elect, reappoint, or reelect Executive to, the
positions of Chief Executive Officer of the Company and/or
Director on the Board; and/or
(vii) the failure of the H.R. Committee to set reasonably
attainable budgeted target levels and objectives in the
Performance Bonus Plan.
(d) Restricted Area. For purposes of this Employment Agreement,
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the term "Restricted Area" shall mean the entire world.
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10. NON-COMPETITION AND CONFIDENTIALITY.
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(a) Non-Competition. During the Term and for a period of twenty-four (24)
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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.
(b) Non-Solicitation of Employees. During the Term and for a period of
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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
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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.
(d) Rights to Innovations. Any invention, improvement, design, development
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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
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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
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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
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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
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shall relieve the Company of its obligations hereunder.
12. BINDING EFFECT. This Employment Agreement shall inure to the benefit of and
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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
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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
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Employment Agreement shall be valid unless the same is in a writing that
specifies the term or 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
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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
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and understanding of the Company and Executive in respect of the terms and
conditions of
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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
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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
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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:
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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:
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Danka Business Systems PLC
Xxxxxxx Xxxxx
000 Xxxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxx x00 OQH
Attn: Secretary
If to the Executive:
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Xxxx Xxxxx
XXXXXXXXXXXXXX
XXXXXXXXXXX
Telephone No.: (XXX) XXX-XXX
Telecopy No: (XXX) XXX-XXX
with a copy to:
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_______________________
_______________________
_______________________
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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
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pursuant to the laws of the State of Florida.
19. ARBITRATION. Any controversy or claim arising out of or relating to this
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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.
20. NO MITIGATION OR OFFSET. Executive shall not be required to mitigate the
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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
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attorneys' fees (for counsel selected by Executive) and expenses arising out of
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
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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,
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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
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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
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(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
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DANKA BUSINESS SYSTEMS PLC
[Lang Lowrey]
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By: X. Xxxx Xxxxxx
---------------------------
Title: Chief Executive Officer
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DANKA HOLDING COMPANY
[Lang Lowrey]
-------------------------------
By: X. Xxxx Xxxxxx
---------------------------
Title: Chief Executive Officer
------------------------
DANKA OFFICE IMAGING COMPANY
[Lang Lowrey]
-------------------------------
By: X. Xxxx Xxxxxx
---------------------------
Title: Chief Executive Officer
------------------------
EXECUTIVE
[Xxxx Xxxxx]
-------------------------------
Xxxx Xxxxx
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