EXHIBIT 10.17
DANKA BUSINESS SYSTEMS PLC
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Change of Control Agreement for ▇. ▇▇▇▇ ▇▇▇▇▇▇ III
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CHANGE OF CONTROL AGREEMENT
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This Change of Control Agreement (the "Agreement") is made and entered into
as of the 19th day of February, 2001, by and among Danka Business Systems PLC
("Danka Business Systems"), Danka Office Imaging Company ("Danka"), Danka
Holding Company ("Danka Holding"), and ▇. ▇▇▇▇ ▇▇▇▇▇▇ III, an individual
("Executive"). Danka Business Systems, Danka, and Danka Holding are collectively
referred to herein, together with their respective successors and assigns, as
the "Company."
W I T N E S S E T H:
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WHEREAS, Executive is an employee of the Company serving in an executive
capacity;
WHEREAS, the Board of Directors of each corporation included in the Company
(the "Board") believes it is necessary and desirable that the Company be able to
rely upon Executive to continue serving in his or her position in the event of a
pending or actual Change of Control (as defined herein) of the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is mutually acknowledged, the Company and Executive
(individually a "Party" and together the "Parties") agree as follows:
1. Definitions.
(a) "Base Salary" shall mean Executive's annual base salary in effect at
the time of the Change of Control or at the time of termination of
employment, whichever is greater.
(b) "Cause" shall mean and be limited to:
(i) Executive's conviction of, or plea of guilty or nolo contendere
to, any crime that (A) constitutes a felony in the jurisdiction
involved; (B) was committed in connection with his duties under the
Employment Agreement (as defined herein) and involved dishonesty,
fraud, or moral turpitude; or (C) results in the incarceration of
Executive following his conviction for such crime; or
(ii) Executive's willful and material violation of any lawful
directions of the Board after it has provided written notice to
Executive specifying the violation and said violation continues after
Executive has had a reasonable opportunity (of not less than sixty
(60) days) to cure such violation.
For purposes of this Agreement, an act or failure to act on Executive's
part shall be considered "willful" if it was done or omitted to be done by
Executive not in good faith, and shall not include any act or failure to
act resulting from Executive's Disability (as defined herein) or other
incapacity.
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(c) A "Change of Control" shall mean and be deemed to have occurred when:
(i) securities of Danka Business Systems representing more than
thirty percent (30%) of the combined voting power of the then
outstanding voting securities of Danka Business Systems are acquired
pursuant to a general offer for the issued share capital of the
Company which is an offer regulated under the U.K. Take-Over Code or
any other tender offer or an exchange offer by any person or group of
persons acting in concert (within the meaning of Section 14(d) of the
Securities Exchange Act of 1934) other than the Company, a direct or
indirect subsidiary or parent of the Company, an employee benefit plan
or similar trust established by the Company;
(ii) a merger or consolidation is consummated in which Danka Business
Systems is a constituent corporation and which results in less than
fifty percent (50%) of the outstanding voting securities of the
surviving or resulting entity being owned by the then existing
stockholders of Danka Business Systems;
(iii) a sale is consummated by the Company of substantially all of
the Company's assets (or substantially all of the assets of Danka) to
a person or entity which is not a wholly-owned subsidiary of Danka
Business Systems or any of its affiliates; or
(iv) during any period of two (2) consecutive years, individuals who,
at the beginning of such period, constituted the Board of Directors of
Danka Business Systems cease, for any reason, to constitute at least a
majority thereof, unless the election or nomination for election for
each new director was approved by the vote of at least two-thirds
(2/3) of the directors then still in office who were directors at the
beginning of such two (2) year period.
For purposes of this Agreement, no Change of Control shall be deemed to
have occurred with respect to Executive if the Change of Control results
from actions or events in which Executive is a participant in a capacity
other than solely as an officer, employee, shareholder, or director of the
Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Disability" shall mean the inability of Executive to perform the
essential functions of his job (even with reasonable accommodation) 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.
(f) "Effective Date" shall mean the date of this Agreement, as set forth
above.
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(g) "Employment Agreement" shall mean the Employment Agreement between
Executive and the Company dated February 19, 2001.
(h) "Excise Taxes" shall have the meaning set forth in Section 3(b) below.
(i) "Good Reason" shall mean the occurrence of one or more of the
following events without Executive's prior written consent (except as a
result of a prior termination):
(i) a material or adverse change in Executive's status,
positions, duties, responsibilities (including reporting
responsibilities), authority, or titles (including, without
limitation, the Board's decision, over Executive's reasonable
objection, not to pursue the current plan to restructure the Company's
balance sheet in order to reduce the amount of debt);
(ii) the assignment to Executive of any duties or work
responsibilities or any instructions, orders, or directives that are
inconsistent with Executive's status, positions, duties,
responsibilities (including reporting responsibilities), authority, or
titles;
(iii) 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;
(iv) any decrease in Executive's annual Base Salary or target
annual incentive award opportunity;
(v) the reassignment of Executive to a location more than thirty
(30) miles from Executive's then-current work location;
(vi) 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;
(vii) 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
Executive 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
Executive's participation therein or reward opportunities thereunder,
or the failure by the Company to provide Executive with
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the benefits to which Executive is entitled as an employee of the
Company; provided, however, that Executive continues to meet
substantially all eligibility requirements thereof;
(viii) any purported termination of Executive's employment for
Cause which is not effected by the Company's delivering written notice
to Executive of the termination for Cause which notice describes the
specific acts or omissions alleged to constitute Cause; or
(ix) the failure of the Company to obtain a satisfactory
agreement from any successor or assignee of the Company to fully
assume and agree to perform this Agreement.
(j) "Severance Payments" shall have the meaning set forth in
Section 3(b) below.
(k) "Term" shall have the meaning set forth in Section 2 below.
2. Term of Agreement. The term of this Agreement shall commence on the
Effective Date and, subject to any amendment or termination of the Agreement by
the Parties permitted by Section 4 below, shall remain in effect until such time
as Executive's employment may be terminated in circumstances which do not
entitle the Executive to Severance Payments under this Agreement (the "Term").
If a Change of Control shall have occurred during the Term, notwithstanding any
other provision of this Section 2, the Term shall not expire until all of the
Company's obligations to Executive under this Agreement have been satisfied in
full.
3. Entitlement to Severance Benefit.
(a) Severance Benefit. In the event Executive's employment with the
Company is terminated by the Company without Cause, other than due to
Executive's death or Disability, or in the event Executive terminates his
employment for Good Reason, in either case within two (2) years following a
Change of Control, or in the event that prior to the consummation of a
pending Change of Control Executive's employment is involuntarily
terminated by the Company without Cause (other than due to Executive's
death or Disability) as a condition to the consummation of the proposed
transaction, whether at the request of the acquiring firm or otherwise, or
Executive terminates his employment for Good Reason in the one hundred and
eighty (180) day period prior to a Change of Control, Executive shall be
entitled to receive the following severance compensation and benefits in
addition to any compensation or benefits to which he may be entitled under
the Employment Agreement:
(i) Executive's Base Salary through the date of termination of
his employment, which shall be paid in a cash lump sum not later than
thirty (30) days following Executive's termination of employment;
(ii) an amount equal to two (2) full years of Executive's Base
Salary, at the rate in effect on the date of termination of
Executive's employment (or in the event a reduction in Base Salary is
a basis for a termination by Executive for
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Good Reason, then the Base Salary in effect immediately prior to such
reduction), payable in a cash lump sum not later than thirty (30) days
following Executive's termination of employment;
(iii) a pro rata annual bonus for the fiscal year which includes
the date of termination, calculated by multiplying the annual bonus
Executive would have earned for the fiscal year of termination, at a
minimum, calculated as if the target performance levels were satisfied
for the fiscal year of termination, or, if greater, any performance
bonus Executive is guaranteed to receive for the fiscal year under the
terms of the Employment Agreement, 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, payable in a cash lump sum not later than thirty (30) days
following Executive's termination of employment;
(iv) an amount equal to two (2) times the annual bonus Executive
would have earned for the fiscal year of termination, at a minimum,
calculated as if the target performance levels were satisfied for the
fiscal year of termination, or, if greater, any performance bonus
Executive is guaranteed to receive for the fiscal year under the terms
of the Employment Agreement, payable in a cash lump sum not later than
fifteen (15) days following Executive's termination of employment;
(v) immediate vesting of all outstanding stock options and the
right to exercise such stock options at any time during an extended
exercise period of not less than thirty-six (36) months following
Executive's termination of employment, or the remainder of the
exercise period, if less, in each case, to the extent permitted by the
terms of the Company's stock option schemes;
(vi) settlement of all deferred compensation arrangements in
accordance with any then applicable deferred compensation plan or
election form;
(vii) continued medical, hospitalization, life and other insurance
benefits being provided to Executive and Executive's family at the
date of termination, for a period of up to twelve (12) 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 date Executive obtains comparable benefits (with
no significant pre-existing condition exclusions) as a result of
Executive's employment in a new position; and
(viii) other or additional benefits then due or earned in
accordance with applicable plans and programs of the Company.
(b) Reduction in Compensation to Avoid Excise Tax. In the event Executive
would become entitled to any amounts payable in connection with a Change of
Control (whether or not such amounts are payable pursuant to this
Agreement) (the "Severance Payments"), if any of such Severance Payments
would otherwise be subject to the excise tax on excess golden parachute
payments imposed by Section 4999 of the Code (or any similar federal,
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state or local tax that may hereafter be imposed) (the "Excise Tax"), as
determined in accordance with this Section 3(b), but prior to giving effect
to any adjustment under this Section 3(b), the following provisions shall
apply:
(i) For purposes of determining whether any of the Severance
Payments would be subject to the Excise Tax and the amount of such
Excise Tax:
(A) Severance Payments, including any payments or benefits
other than those under this Section 3(b) received or to be
received by Executive in connection with Executive's termination
of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company, any
person whose actions result in a Change of Control or any person
affiliated with the Company or such person) (which, together with
the Severance Payments, constitute the "Total Payments"), shall
be treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code, and all "excess parachute payments"
within the meaning of Section 280G(b)(1) of the Code shall be
treated as subject to the Excise Tax, unless in the opinion of a
nationally-recognized public accounting firm mutually acceptable
to Executive and the Company such other payments or benefits (in
whole or in part) do not constitute parachute payments, or such
excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered within the
meaning of Section 280G(b)(4) of the Code in excess of the base
amount within the meaning of Section 280G(b)(3) of the Code, or
are otherwise not subject to the Excise Tax;
(B) the amount of the Total Payments which shall be deemed
to be treated as subject to the Excise Tax shall be equal to the
lesser of (x) the total amount of the Total Payments and (y) the
amount of excess parachute payments within the meaning of Section
280G(b)(1) of the Code (after applying Section 3(b)(i)(A)
hereof); and
(C) the value of any non-cash benefits or any deferred
payments or benefit shall be determined by a nationally-
recognized public accounting firm mutually acceptable to
Executive and the Company in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code.
(ii) If a reduction in the aggregate amount of Severance Payments
Executive otherwise would be entitled to receive by an amount not
exceeding twenty percent (20%) of such Severance Payments would result
in Executive receiving a greater "Net After-Tax Amount," as such term
is defined below, then such Severance Payments shall be reduced by the
amount, not exceeding twenty percent (20%) of such Severance Payments,
as will provide to Executive the greatest Net After-Tax Amount, such
reduction to be made from such payments under this Agreement or such
other of the Severance Payments not yet paid to Executive as Executive
shall specify. For this purpose, the term "Net After-Tax Amount" shall
mean the net
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amount of the Severance Payments after deducting any federal, state
and local income tax and Excise Tax which would be applicable to such
Severance Payments. In the event that the Excise Tax is subsequently
determined to differ from the amount taken into account hereunder at
the time of termination of employment, adjustments shall be made in
accordance with this Section 3(b)(ii) in light of the revised
determination.
(iii) All determinations under this Section 3(b) shall be made at
the expense of the Company by a nationally recognized public
accounting firm mutually agreeable to Executive and the Company, and
such determination shall be binding upon Executive and the Company.
(c) No Mitigation, No Offset. In the event of any termination of
Executive's employment, Executive shall be under no obligation to seek
other employment; amounts due Executive under this Agreement shall not be
offset by any remuneration attributable to any subsequent employment that
he may obtain. In addition, no payments to Executive under this 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.
(d) Nature of Payments. Any amounts due under this Section 3 are in the
nature of severance payments considered to be reasonable by the Company and
are not in the nature of a penalty.
(e) Exclusivity of Severance Payments. Upon termination of Executive's
employment during the Term, he shall not be entitled to any severance
payments or severance benefits from the Company or any payments by the
Company on account of any claim by Executive of wrongful termination,
including claims under any federal, state or local human and civil rights
or labor laws, other than the payments and benefits provided in this
Agreement and the Employment Agreement.
(f) Release of Employment Claims. Executive agrees, as a condition to
receipt of the termination payments and benefits provided for in this
Agreement and in the Employment Agreement, that he will execute a release
agreement, a form of which is attached hereto as Exhibit A, releasing any
and all claims arising out of Executive's employment.
4. Amendment or Termination. Except as otherwise provided in this Section 4,
this Agreement may be amended or terminated only with the express mutual consent
of the Company and Executive and no amendment to the provisions of this
Agreement by mutual consent shall be effective unless such amendment is agreed
to in writing and signed by Executive and an authorized officer of the Company.
5. Resolution of Disputes. Any controversy or claim arising out of or
relating to this Agreement, 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
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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. The 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.
6. Attorneys' Fees. The Company will promptly reimburse Executive for all
attorneys' fees (for counsel selected by Executive) and expenses arising out of
any dispute under or in connection with this Agreement (whether litigation or
arbitration) to the extent Executive is the prevailing party. Executive shall
not be responsible or liable for the Company's attorneys' fees and expenses in
any dispute arising under or in connection with this Agreement, and no award or
order relating to this Agreement shall award the Company its attorneys' fees.
The Company also agrees to pay Executive's attorneys' fees and expenses incurred
in negotiating and drafting this Agreement. The normal rates of the attorneys
chosen by Executive shall be deemed to be reasonable.
7. Miscellaneous Provisions.
(a) Effect of Agreement on Other Benefits. Except as specifically provided
in this Agreement, the existence of this Agreement shall not be interpreted
to preclude, prohibit or restrict Executive's participation in any other
employee benefit or other plans or programs in which he participates,
including pursuant to the Employment Agreement, or subsequently may have a
right to participate pursuant to the terms of such plans or programs.
(b) Not an Employment Agreement. This Agreement is not, and nothing
herein shall be deemed to create, a contract of employment between
Executive and the Company. The Company may terminate the employment of
Executive subject to the terms of the Employment Agreement.
(c) Assignability: Binding Nature. This Agreement shall be binding upon
and inure to the benefit of the Parties and their respective successors,
heirs (in the case of Executive) and permitted assigns. No rights or
obligations of the Company under this Agreement may be assigned or
transferred by the Company except that such rights or obligations may be
assigned or transferred in connection with the sale or transfer of all or
substantially all of the assets of the Company, provided that the assignee
or transferee is the successor to all or substantially all of the assets of
the Company and such assignee or transferee assumes the liabilities,
obligations and duties of the Company, as contained in this Agreement,
either contractually or as a matter of law. The Company further agrees
that, in the event of a sale or transfer of assets as described in the
preceding sentence, it shall use its best efforts and take whatever action
or actions it legally can in order to cause such assignee or transferee to
expressly assume the liabilities, obligations and duties of the Company
hereunder. No rights or obligations of Executive under this Agreement may
be assigned or transferred by Executive other than his/her rights to
compensation and benefits, which may be transferred only by will or
operation of law, except as provided in Section 7(i) below.
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(d) Representation. The Company represents and warrants that it is fully
authorized and empowered to enter into this Agreement and that the
performance of its obligations under this Agreement will not violate any
agreement between it and any other person, firm or organization.
(e) Entire Agreement. This Agreement contains the entire understanding
and agreement between the Parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations
and undertakings, whether written or oral, between the Parties with respect
thereto; provided, however, that this Agreement does not supersede or
affect the Employment Agreement between Executive and the Company.
(f) No Waiver. No waiver by either Party of any breach by the other Party
of any condition or provision contained in this Agreement to be performed
by such other Party shall be deemed a waiver of a similar or dissimilar
condition or provision at the same or any prior or subsequent time. Any
waiver must be in writing and signed by Executive or an authorized officer
of the Company, as the case may be.
(g) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, the remaining provisions of this Agreement
shall be unaffected thereby and shall remain in full force and effect to
the fullest extent permitted by law.
(h) Survivorship. The respective rights and obligations of the Parties
hereunder shall survive any termination of Executive's employment to the
extent necessary to the intended preservation of such rights and
obligations.
(i) Beneficiaries. Executive shall be entitled, to the extent permitted
under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder
following Executive's death by giving the Company written notice thereof.
In the event of Executive's death or a judicial determination of his
incompetence, references in this Agreement to Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
(j) Governing Law/Jurisdiction. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of
Florida without reference to principles of conflict of laws. Subject to
Sections 5, the Company and Executive hereby consent to the jurisdiction of
any or all of the following courts for purposes of resolving any dispute
under this Agreement not subject to arbitration: (i) the United States
District Court for Florida or (ii) any of the courts of the State of
Florida. The Company and Executive further agree that any service of
process or notice requirements in any such proceeding shall be satisfied if
the rules of such court relating thereto have been substantially satisfied.
The Company and Executive hereby waive, to the fullest extent permitted by
applicable law, any objection which it or he may now or hereafter have to
such jurisdiction and any defense of inconvenient forum.
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(k) Source of Payments. All severance benefits and other payments to
Executive under this Agreement shall be paid to Executive by the Company in
cash in U.S. dollars. If the Company should fail to make any such payment
to Executive when due, Danka, Danka Holding, and Danka Business Systems
shall be jointly and severally liable to Executive for such payments.
(l) Notices. Any notice given to a Party shall be in writing and shall be
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed
to the Party concerned at the address indicated below or to such changed
address as such Party may subsequently give such notice of:
If to the Company:
Danka Business Systems PLC
Masters House
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ OQH
Attention: Secretary
and:
Danka Office Imaging Company
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
If to Executive:
▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(m) Headings. The headings of the sections contained in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
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(n) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
DANKA BUSINESS SYSTEMS PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
DANKA HOLDING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
DANKA OFFICE IMAGING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
EXECUTIVE
/s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇ III
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▇. ▇▇▇▇ ▇▇▇▇▇▇ III
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EXHIBIT A
RELEASE OF CLAIMS
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1. 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 Business
Systems PLC (the "Company"), Danka Office Imaging Company ("Danka"), Danka
Holding Company ("Danka Holding"), 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, my termination of
employment, or any employee benefit plan, including, but not limited to,
common law, or equitable claims; fraud or misrepresentation; any statutory
claims, including alleged violations of 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; and wrongful
termination of employment; provided, however, that My Claims do not include
claims for payments or benefits which are to continue for a specified
period of time following my termination of employment in accordance with
the Change of Control Agreement and/or the Employment Agreement between the
Company, Danka, Danka Holding, and me, or any employee benefit plan, or
option or award thereunder, in effect at the time of termination.
(d) Agreement to Release My Claims. I am receiving a substantial amount of
money, among other things, from Employer as consideration for this Release
of My 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 of My Claims. The money I am receiving is
a full and fair payment for the release of all My Claims.
2. Additional Agreements and Understandings.
(a) 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 it has engaged in any wrongdoing.
(b) 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.
(c) 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 Company, Attention General Counsel, Danka, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, either by hand or by mail
within the required period. If sent by mail, the rescission must be (i)
postmarked within the relevant period; (ii) properly addressed to the
General Counsel; and (iii) sent by certified mail, return receipt
requested.
(d) 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.
(e) I understand and agree that my Employment Agreement, this Release, and
my Change of Control Agreement contain all the agreements between the
Employer and me. We have no other written or oral agreements.
Dated:
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▇. ▇▇▇▇ ▇▇▇▇▇▇ III
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Witness: