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Exhibit 10.7
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of July 27, 1998, between Danka Office
Imaging (the "Company"), and Xxxxx X. Xxxx ("Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to provide for the employment of Executive
as Senior Vice President, General Counsel and Secretary of the Company on the
terms and conditions herein set forth; and
WHEREAS, Executive wishes to serve in such capacity on the term 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
Senior Vice President, General Counsel and Secretary 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 Senior Vice President, General Counsel and
Secretary 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 4 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 July 27,
1999 (the "Termination Date"). Notwithstanding the foregoing, this Agreement
shall automatically renew for one-year periods unless earlier terminated as
provided herein.
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 $250,000.00 per
annum (the "Base
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Compensation"). Executive shall be eligible for annual
increases at the discretion of the Chief Executive.
3.2 Executive shall have a target bonus of thirty-five (35%) of
his Base Compensation based upon achievement of established
corporate division and individual objectives as approved by the
Chief Executive. Executive will also be eligible for an
additional "stretch" bonus of an additional thirty-five percent
(35%) of his Base Compensation 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 Company's Fiscal Year 1999 of this Agreement Company
shall guarantee that Executive receive a minimum bonus of not
less than $87,500.00 payable on or before May 1, 1999.
Company shall grant Executive 40,000 ordinary share stock
options as soon as practicable. Executive understands and
agrees that any granting of stock options is subject to Board
of Directors approval.
3.4 Executive shall receive all of the fringe benefits and
perquisites of office made available to the officers of the
Company, including the following:
o Airline Club expenses - up to $1,000.00 annually
3.5 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.
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
Senior Vice President, General Counsel and Secretary 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 to following
events:
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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 5.2.4 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 of
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
Senior Vice President, General Counsel and Secretary 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 Company shall pay
Executive his Base Compensation and continue and/or pay
Executive's benefits for the next 12 succeeding months
following termination.
Executive agrees that in order to receive liquidated damages
described herein, Executive at the time of termination, agrees
to execute 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 twelve 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
twelve 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
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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 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 12 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, 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 from 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,
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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.
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: Chief Executive
8.2 If to Executive:
000 00xx Xxxxxx X.X.
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
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.
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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 of otherwise, in any one or
more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such 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 Any controversy or claim arising out of or relating to this
Employment Agreement, other than a claim for injunctive relief,
shall be scaled 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 by the 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. 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 prevailing party shall
be entitled to an award of reasonable attorney's fees, costs and
expenses incurred in connection with the arbitration and any
judicial proceedings related thereto.
9.7 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
DANKA OFFICE IMAGING COMPANY
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
Title:
----------------------------
Executive
By: /s/ Xxxxx X. Xxxx
------------------------
Witness:
/s/ Xxxxx X. Xxxxx
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EXHIBIT A
RELEASE OF CLAIMS
DEFINITIONS: I, Xxxxx X. Xxxx, ("Employee"), intend all words used in this
Release to have their plain meaning in ordinary English. Technical legal words
am 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;
2. Properly addressed to the General Counsel; and
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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: _____________________________
____________________________________
Witness: ___________________________
