Exhibit 10.43
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of August 15, 2000, between Danka Office
Imaging Company (the "Company"), and Xxxxx X. Xxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Company wishes to provide for the employment of Executive as
Senior Vice President, General Counsel of the Company on the terms and
conditions herein set forth; and
WHEREAS, Executive wishes to serve in such capacity on the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Employment, Powers, Duties and Acceptance.
1.1 The Company hereby employs Executive, for the Term (as hereinafter
defined), to render services to the Company as Senior Vice President,
General Counsel, reporting to the Chief Executive Officer of the Company.
1.2 Executive shall be a full-time employee of the Company, and subject to
customary paid holidays and vacations (not less than three (3) weeks per
year), Executive agrees to devote his full working time to the business of
the Company.
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 as provided herein, one (1) year from the
date of execution of this Agreement (the "Termination Date").
Notwithstanding the foregoing, this Agreement shall automatically renew for
additional one-year periods unless earlier terminated as provided herein,
in which case the Termination Date shall be extended for such additional
one year period.
3. Compensation.
3.1 During the Term, the Company shall pay Executive, as compensation for
services to be rendered pursuant to this Agreement, a per annum salary,
payable in accordance with the Company's standard payroll practices, at the
rate established from time to time not to be less than Executive's salary
at the time of execution of this Agreement (the "Base Compensation").
Executive shall be eligible for annual increases in accordance with Company
policies, and shall be eligible to receive annual stock option grants as
are equitable and consistent with Executive's position and performance.
3.2 Executive shall have a target bonus of fifty (50%) of his Base
Compensation based upon achievement of established Company revenues and
EBITDA objectives, or as otherwise developed by the Human Resources
Committee of the Board of Directors of Danka Business
1
Systems, PLC. Said bonus shall be payable as soon as practicable following
the end of Company's fiscal year.
4. Termination. This Agreement may be terminated prior to the Termination Date
in accordance with the following:
4.1 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 Term.
4.2 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 of the
Company, and to terminate his right to the compensation provided for herein
for cause. As used in this Section 4.2, the term "for cause" shall mean and
be limited to the following events:
4.2.1 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
4.2.2 Executive's conviction 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.
4.3 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 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 4.1 or 4.2 hereof, the Company shall pay Executive an
amount equal to the sum of (1) one and one-half times (i.e. 18 months)
Executive's then existing base salary, and (2) one and one-half times the
annual target bonus which would be payable in the fiscal year of Notice of
Termination as if the Company's financial performance targets were deemed
to be satisfied at the budgeted levels. Executive may elect the above
payments to be made in one lump sum payable within ten (10) days of
Executive's last day of employment with Company.
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 It shall be deemed a
termination under this Section 4.3 if at any time (1) there is any change
in Executive's status, title, authorities, or responsibilities which can
reasonably be construed to be a demotion from the status, title,
authorities and responsibilities of the Senior Vice President, General
Counsel of a United Kingdom/United States publicly traded company; (2) the
relocation or reassignment of Executive to a location more than thirty (30)
miles from St. Petersburg, Florida; (3) a breach by Company of the
Compensation provisions of Section 3 herein.
2
5. 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):
5.1 If to the Company:
Danka Office Imaging Company
00000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive
5.2 If to Executive:
Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
6. General.
6.1 The section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this
Agreement.
6.2 This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and supercedes all prior
agreements, arrangements and understandings written or oral, relating to
the subject matter hereof with the exception of any Change of Control
Agreement executed between the parties which shall remain in full force and
effect. 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.
6.3 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.
6.4 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.
6.5 Any controversy or claim arising out of or relating to this Employment
Agreement, other than a claim for injunctive relief, shall be settled by
arbitration in accordance with the
3
Commercial Arbitration Rules of the American Arbitration Association (the
"Rules") in effect at the time demand for arbitration is made by any party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
DANKA OFFICE IMAGING COMPANY
By: /s/ Illegible
------------------------------
Title: Chief Executive Officer
Executive
By: /s/ Illegible
------------------------------
Witness:
/s/ Illegible
------------------------------
4
EXHIBIT A
RELEASE OF CLAIMS
DEFINITIONS: I, , ("Employee"), intend all words used
---------------------------
in this Release to have their plain meaning in ordinary English. Technical legal
words are not needed to describe what I mean. Specific terms I use in this
Release have the following meanings:
A. I, Me, and My include both me and anyone who has or obtains any legal
rights or claims through me.
B. Employer, as used herein, shall at all times mean Danka or any parent
company, affiliated companies or entities and includes Employer's
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, and 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 Florida Human Rights Act, 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, or any other
claims.
Agreement to Release My Claims. I am receiving a substantial amount of money,
among other things, from the Employer as consideration for my release of claims.
I agree to give up all My Claims against 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.
5
Additional Agreements and Understandings. Even though Employer is paying me to
release My Claims, the employer expressly denies that it is responsible or
legally obligated for My Claims or that it 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 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 and
within fifteen (15) calendar days of signing it to reinstate claims under the
Florida Human Rights Act. To be effective, my rescission must be in writing and
delivered to the Employer, , 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 ; and
-----------------------
3. Sent by certified mail, return receipt requested.
I have read this Release carefully and understand all its terms. I have had
the opportunity to review this Release with my own attorney. In agreeing to sign
this Release, I have not relied on any statements or explanations made by
Employer or its agents.
I understand and agree that this Release and the Separation Agreement to
which it is attached contain all the agreements between the Employer and me. We
have no other written or oral agreements.
Dated: Signed:
--------------------------------- -------------------------------
Witnesses:
6