These excerpts taken from the DANKY 10-Q filed Aug 2, 2007.
SECTION VI - GENERAL
A) ARBITRATION. In the event Executives employment is terminated, and Executive contends that such termination was wrongful or otherwise in violation of his rights or privileges, express or implied, whether founded in fact or in law, or any other rights or privileges, or was in violation of any express or implied condition, term, or covenant, whether founded in law or in fact, including but not limited to the covenant of good faith and fair dealing, or otherwise in violation of law, Executive and Company agree to submit the above-described disputed matter to binding arbitration before the American Arbitration Association pursuant to its National Rules for the Resolution of Employment Disputes. Executive agrees that he shall not be entitled to any other remedy at law or in equity, including but not limited to general, special, punitive or exemplary damages and/or injunctive relief. 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 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 even 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 attorneys fees, costs and expenses incurred in connection with the arbitration and any judicial proceedings related thereto.
B) REFORMATION. The provision and covenants contained herein are intended to be separate and divisible and if, for any reason, any one or more of such provisions or covenants should be held to be invalid and unenforceable in whole or in part, it is agreed that the same shall not be held to affect the validity or enforceability of any other provisions and covenants of this Agreement. In the event that any restriction set forth in this Agreement is determined by a court of competent jurisdiction to be unenforceable with respect to scope, time or geographical coverage, Executive agrees that such a restriction will be modified and narrowed so as to provide the maximum protection of the Companys legally protected interest as described herein and without negating or impairing any other restrictions or agreements set forth herein.
C) REASONABLENESS. Executive acknowledges that he has carefully read this Agreement and given careful consideration to the restraints imposed upon Executive by this Agreement, and is in full accord as to their necessity for the reasonable and proper protection of the Company Secrets. The Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area. Executive agrees and stipulates that this Agreement, and its provisions addressing non-competition, non-solicitation and confidentiality, are reasonable in time, area, and line of business. Executive stipulates and agrees that during his period of employment with Employer, he has obtained knowledge of Employers trade secrets, valuable confidential business information, substantial relationships with prospective and existing customers and received extraordinary and special training. Executive stipulates and agrees that this Agreement is reasonably necessary to protect the legitimate business interests of Employer and is not overbroad nor overlong in duration.
D) MODIFICATION. This Agreement may only be modified or amended with the prior approval of Companys Chief Executive Officer and such modification or amendment must be in writing signed by both the Executive and the Chief Executive Officer or his designee. Notwithstanding the foregoing, the Parties further agree that if a judicial or quasi-judicial entity declares this Agreement invalid in whole or in part, it may modify the terms of the Agreement to give effect to the Agreement as modified.
E) SUCCESSOR AND ASSIGNS OF THE COMPANY. This Agreement shall inure to the benefit of an bind the Company and its successors, assigns, officers, directors, agents, employees, shareholders, affiliates, predecessors, including without limitation, any person, firm, corporation, association, partnership, limited liability company or entity or combination thereof which shall acquire substantially all of the assets, or direct or indirect control of a majority of the voting stock of the Company. Notwithstanding anything to the contrary herein, this Agreement (and the provisions herein) shall be declared null and void in the event Company goes into bankruptcy or becomes insolvent. The rights and obligations conferred upon Executive under this
Agreement shall be exclusively the rights and obligations of the Executive, and may not be assigned, and except as expressly provided in this Agreement, the Executives family members, heirs, administrators, and representatives shall have no independent or beneficial rights under this Agreement.
F) SURVIVAL OF OBLIGATIONS AND PROVISIONS. Exercise of the Companys termination rights according to the provisions herein shall not affect the Companys rights or the Executives obligations herein. The Parties acknowledge and agree that the provisions within Sections II, III, IV, V, and VI shall survive the termination or expiration of this Agreement as well as the termination of Executives employment relationship with the Company.
G) EXPENSES OF ENFORCEMENT. Executive shall be liable for, and will reimburse Company for all costs and expenses, including, but not limited to, reasonable attorneys fees, incurred by the Company in the successful enforcement in any respect of any of its rights under this Agreement, whether in litigation or otherwise. Likewise, in the event the Company is unsuccessful in enforcing its rights under this Agreement, whether in litigation or otherwise, then the Company shall pay all of the Executives costs and expenses, including, but not limited to, reasonable attorneys fees, incurred by Executive in defending against the Companys claims.
H) ENTIRE AGREEMENT. The Executive acknowledges and agrees that this Agreement, including any amendments thereto, which are incorporated herein and made a part of the Agreement, constitute the entire agreement between the Parties concerning the subject matter of this Agreement. Executive hereby represents that, in signing the Agreement, he has not relied upon any promise, representation, or any other inducement that is not expressed herein.
I) APPLICABLE LAW. This Agreement, the construction of its terms, and the interpretation of the Parties rights and duties shall be governed by and construed according to the laws of the State of Florida (the state of the principal place of business of Company) without regard to the choice of law provisions of such state.
J) VENUE. The Parties hereby agree that any lawsuit or proceeding instituted regarding this Agreement, its interpretation, enforcement or validity shall be commenced in the Circuit Court in and for Pinellas County, Florida, and the Parties hereby consent to the personal jurisdiction over them of both Courts.
K) UNDERSTANDING OF TERMS. Executive acknowledges that he has carefully reviewed the contents of this Agreement, understands its import and intent, including the restrictions on post-termination employment it imposes, and that he agrees to its terms without duress and in full and complete knowledge of its effect.
L) WAIVER. No omission or delay on the part of either Party of due and punctual fulfillment of any obligation shall be deemed to constitute a waiver by the other Party of any of its rights to require such due and punctual fulfillment of any other
obligation hereunder, whether similar or otherwise, or a waiver of any remedy it may have. 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 or 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.
M) SEVERABILITY. If any of the provisions of or covenants contained herein are hereafter construed to be invalid or unenforceable in a particular jurisdiction, the same shall not affect the remainder of the provisions or the enforceability thereof in that jurisdiction, which shall be given full effect, without regard to the invalidity or unenforceability thereof in a particular jurisdiction because of the duration and/or scope of such provision or covenant in that jurisdiction and, in its reduced form, said provision or covenant shall be enforceable. In all other jurisdictions this Agreement shall at all times remain in full force and effect.
N) COUNTERPARTS. 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.
O) RE-EMPLOYMENT Executive agrees that if Executive becomes re-employed by Danka or employed by another employer during the severance period hereunder, all severance payments and benefits will be discontinued as of the date of employment. Executive shall notify the Vice President Legal at Danka Office Imaging Company at 11101 Roosevelt Boulevard, St. Petersburg, FL 33716, of such new employment upon acceptance.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.