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EXHIBIT 10.1
COMPENSATION PLAN AND AGREEMENT
This Agreement is made as of the 31 day of May, 1995, by BoxHill Systems
Corp., a New York Corporation, with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X.
00000 ("BH") and Xxxxxx Xxxxx, individually, residing at 0000 XxXxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Black").
BH and BLACK each recognize that:
BH is in the business of providing a variety of unique products and
services to its clients; and BLACK is an individual with unique
executive management capabilities;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set out below, and as an integral part of the terms of BLACK'S employment with
BH, BLACK and BH, intending to be legally bond, agree as follows:
I. POSITION & APPLICATION OF AGREEMENT
BLACK is hired by BH, subject to the terms and conditions of this
Agreement, as the Chief Executive Officer ("CEO") of BH.
BLACK is an Employee At Will of BH and BLACK'S employment with BH may be
terminated by BLACK or BH in accordance with the provisions hereof.
BLACK'S position may be changed by BH, at its option, from time to time,
upon 30 days prior written notice to BLACK. Any change of position of BLACK
initiated by BH and not voluntarily accepted by BLACK, shall be treated as a
termination of BLACK for convenience and without "Cause" by BH, as provided for
by the termination provisions of this Agreement.
BLACK shall devote his full time and attention to his position with BH.
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BLACK shall observe all applicable laws, regulations and rules in the
performance of this Agreement.
BLACK shall work as at the direction of the Board of Directors of BH.
BLACK shall also work at the direction of the Management Committee of BH of
which he will be a member, along with the President and Secretary of BH.
BLACK will perform such work, as is consistent and commensurate with
BLACK'S position and will make all best efforts to properly discharge all of
BLACK'S performance obligations under this Agreement.
BLACK may be requested by BH, at the sole option of the Board of Directors
and Shareholders of BH, to serve as a member of the Board of Directors of BH. In
the event BH makes such request, BLACK agrees to accept such appointment and any
service by BLACK as a member of the Board of Director of BH, shall be without
additional compensation.
BLACK understands that BH does not now maintain and no commitment is made
by BH that it will in the future maintain, any Officer or Director liability
insurance.
BLACK agrees that this Agreement applies to the entire term of his
employment with BH as to past, current and future employment, regardless of
changes in position, work locations or otherwise.
BH's entire obligation and liability to BLACK is established by this
Agreement.
BLACK understands that certain provisions of this Agreement will continue
to apply to
BLACK and will continue to bind BLACK following the expiration, termination or
cancellation of this Agreement, for any reason whatsoever.
II. WARRANTS & REPRESENTATIONS OF BLACK
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BLACK warrants and represents to BH that he has fully disclosed to BH all
information which would influence BH's decision to enter into this Agreement
with BLACK and BLACK is not subject to any claims, actions, proceedings,
obligations, or liabilities which BLACK has not fully disclosed to BH.
BLACK warrants and represents to BH that he has fully investigated and
explored the opportunities and risks presented by this Agreement and that he is
not entering into this Agreement on the basis of any promise or commitment not
expressly set forth herein.
BLACK warrants and represents to BH that he fully understands and agrees
that BH may enter into understandings and agreements with other parties which
may be the same, similar, or different from those as established hereby and
nothing in this Agreement or otherwise shall restrict BH from entering into such
understandings or agreements.
BLACK warrants and represents to BH that he is free to enter into this
Agreement and that he is not subject to any restrictions or limitations of any
form, irrespective of whether such restrictions may or may not have been
enforced, affecting, the formation or performance of this Agreement.
III. RESTRICTIONS ON BLACK
The following restrictions apply to BLACK while this Agreement is in
effect, in addition to the other provisions hereof.
BLACK may not offer, promise, give, assign, or pay any portion or all of
his compensation to any other individual or entity without the prior approval of
BH.
BLACK shall not make any material and substantial commitments as to the
products, services of BH or the personnel of BH or any other aspects of BH'S
business, without obtaining
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the prior approval for such commitments from the Management Committee of BH or
the Board of Directors of BH. For purposes of the foregoing, material and
substantial shall mean, extra ordinary, exceeding any regular, routine or
necessary commitments in the day to day operations of the business of BH.
While this Agreement is in effect, BLACK shall not, without the written
consent of the Board of Directors of BH, participate, directly or indirectly, in
any business activity, including, any business activity that is competitive with
or otherwise relates to the current or contemplated business of BH, as may be
reasonably known to it, including but not limited to, the business of
development, sale, licensing, promotion, utilization, exploitation of, or other
dealing in, or with, computer hardware, computer software, data services,
information processing systems and consulting services, or other computer based
services or products or any other products or services sold or offered by BH.
BLACK agrees that BLACK is subject to a code of ethical conduct and all
applicable laws, regulations and rules and shall perform the work under this
Agreement in accordance with all applicable laws, regulations and rules and
ethical standards.
IV. COMPENSATION & TAXES
Compensation shall be payable by BH to BLACK, as described in Attachment
A.
BLACK shall only be entitled to compensation for and during the time in
which this Agreement is in effect, except as otherwise expressly provided for
herein.
BLACK is responsible for all taxes, duties, or similar charges arising out
of compensation paid by BH to BLACK under this Agreement, or any other benefits
provided by BH to BLACK under this Agreement, including, the grant by BH to
BLACK of any BH stock or stock options of
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BH.
V. INTELLECTUAL PROPERTY RIGHTS
BLACK does hereby assign and grant to BH the entire right, title and
interest of BLACK, in and to, any work BLACK furnishes or produces or which
results from this Agreement (whether or not copyrightable or patentable)
irrespective if such work is conceived or first actually reduced to practice in
the course of performance of this Agreement.
BLACK does hereby assign and grant to BH the entire right, title and
interest of BLACK in and to all ideas, concepts, know-how, inventions,
improvements, discoveries or other intellectual property, (whether or not
copyrightable or patentable), conceived or first actually reduced to practice in
the course of performance of this Agreement, or previously conceived and reduced
to practice which is incorporated by BLACK in the work or which are necessary to
utilize the work covered by this Agreement.
BLACK will, without charge to BH and at BH'S request execute such
documents and instruments, including, but not limited to, an assignment of
title, to reflect the foregoing.
VI. CONFIDENTIALITY
BLACK expressly covenants and agrees that he will not at any time, whether
during the term of employment hereunder or thereafter, reveal or disclose to any
firm, person, or entity, nor permit to be revealed or disclosed, any information
or data concerning BH'S or its clients, suppliers, employees, subcontracts,
products, services, business and finances, or use any such information, except,
as expressly authorized, in advance and in writing, by BH'S Board of Directors.
Without limitation to the above, BLACK specifically acknowledges and agrees that
information and data regarding computer hardware, computer software programs,
systems
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developed or improved by BH personnel, the identity of BH'S actual and potential
clients and client representatives and contacts, the nature of the products or
services provided by BH and the prices charged therefore, the identities of BH'S
actual and prospective employees, suppliers and subcontractors, and the specific
skills possessed by BH'S actual and prospective employees, suppliers and
subcontractors are to be treated as confidential and proprietary, and that such
information and data constitute BH trade secrets.
Upon termination, BLACK agrees not to, directly or indirectly, use for any
purposes whatsoever such information and data and that BLACK will continue to
keep such information and data confidential and shall not disclose or reveal
such to any other party.
Upon termination, BLACK agrees to promptly deliver to BH all materials or
property in his possession belonging to BH, or its clients, suppliers and
subcontractors, and any and all copies thereof, including, but not limited to,
any and all originals and copies of sales information, files and reports,
telephone directories, reports, manuals, procedures, visual aids, customer
lists, correspondence and any other material and property relating to the
business of BH, or its clients, suppliers and subcontractors in the custody of
BLACK.
BLACK shall not divulge or furnish to BH or any other party with whom
BLACK may be in contact with as a result of this Agreement, any information or
data which BLACK does not have the right to divulge or furnish and BLACK shall
not infringe upon any property right of BH or any third party in the performance
of this Agreement.
VII. TERMINATION
BH may terminate this Agreement and BLACK'S employment hereunder for
"Cause", arising from BLACK'S substantial and material breach of this Agreement
or any other reason
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constituting "Cause" as established by applicable law, upon written notice to
BLACK.
BLACK may terminate this Agreement and BLACK'S employment hereunder, for
"Cause", upon written notice to BH, arising from BH'S substantial and material
breach of this Agreement. The only manner in which BH may substantially and
materially breach this Agreement is by its failure to make payment to BLACK of
compensation, as established by this Agreement, as properly payable to BLACK.
This Agreement is not otherwise subject to termination for "Cause" by BLACK.
BH may terminate this Agreement and BLACK'S employment hereunder, for
convenience and without "Cause", at any time, upon 30 days prior written notice
to BLACK.
BLACK may terminate this Agreement and BLACK'S employment hereunder, for
convenience and without "Cause", at any time, upon 30 days prior written notice
to the BH.
In the event of termination of BLACK by BH for "Cause" as provided for
above or if BLACK terminates this Agreement for convenience and without "Cause",
BLACK shall only be entitled to compensation actually paid by BH to BLACK, as of
the date of the notice of such termination.
In the event of termination by BLACK for "Cause" as provided for above or
if BH terminates this Agreement for convenience and without "Cause", provided
BLACK observes all the other provisions of this Agreement, including, the
confidentiality, non-interference and non-competition provisions of this
Agreement, BLACK shall be entitled to compensation accrued by BLACK to the
effective date of termination. Accrued compensation equals compensation actually
paid to BLACK, as of the date of the notice of such termination plus
compensation to the effective date of termination plus 1 year severance
compensation equal to BLACK'S annual
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salary and bonus for the calendar year prior to termination, not to exceed in
any event $600,000.00 in total, which severance compensation is payable over the
year subsequent to the effective date of termination in the same manner as
salary is paid.
BLACK shall not be entitled to any other compensation from BH, except as
expressly set forth in this Agreement.
VIII. NON-COMPETITION
In the event that BLACK'S employment with BH shall be terminated at any
time and for any reason, whether by BH or BLACK, or otherwise, BLACK agrees that
he will not, without the prior written consent of BH, for a period of 1 year
after the date of such termination, directly or indirectly, on his own behalf,
on behalf of any other person, or on behalf of or as a partner, shareholder,
officer, director, employee, agent, consultant or trustee of any entity, or
otherwise, engage in any business or activity in direct or indirect competition
with BH, or with any parent, subsidiary, affiliate or successor of BH, in the
State of New York, and/or any other State or Country, in which BH is doing
business on the date of the termination of BLACK'S employment, which business or
activity in direct or indirect competition with BH shall mean:
(i) providing to any of the active clients of BH, as hereinafter defined,
products or services similar to or competitive with the products or
services available from BH during any part of the 1 year after termination
of BLACK'S employment, or soliciting or attempting to solicit any active
client of BH for the purpose of providing such products or service to it.
For purposes hereof, active clients shall mean those persons or entities
for which BH sold or leased any product, performed any service during the
1 year period immediately preceding the termination of BLACK'S employment;
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(ii) directly or indirectly contacting, or providing products or services
similar to or competitive with the products or services available from BH
during any part of the 1 year after termination of BLACK'S employment to
any past or prospective client of BH with whom he had any dealings during
the 1 year period immediately prior to the effective date of the
termination of his employment, regardless or whether such past or
prospective clients are or were "active" as defined above.
(iii) hire, subcontract, employ or engage, or solicit, contact or
communicate with for the purpose of hiring, employing, subcontracting or
engaging, any person or entity which was a current or prospective
employee, supplier or subcontractor of BH, at the time of the termination
of BLACK'S employment or at any time within the 1 year period immediately
preceding such termination, for the purpose of performing the same or
similar services that such person was performing for BH during any part of
the 1 year after termination of BLACK'S employment. For purposes of the
above, current is defined as any party with whom BH had an agreement or
understanding in effect, as of the date of termination and prospective is
defined as any party to whom BLACK had contact with or knowledge of prior
to the date of termination.
BH and BLACK agree that the period of time and geographical area specified
above are reasonable in view of the nature of the business in which BH is
engaged and proposes to engage and BLACK'S knowledge of its business. However,
if any of such periods or such area should be judged unreasonable in any
judicial proceedings, then such period of time shall be reduced by elimination
of such portion thereof, or both, as are deemed unreasonable, so that this
covenant
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may be enforced in such area and during such period of time as is adjudged to be
reasonable.
The parties recognize that a remedy at law for a breach of this section
will not be adequate, and for its protection, BH shall have the right to obtain,
in addition to any other relief and remedies available to it, injunctive relief,
whether mandatory or restraining, to enforce the provisions of this section. In
the event that the provisions of this section are violated and BH obtains a
preliminary or permanent injunction, the duration of the limitations embodied in
this section shall be extended to 1 year from the effective date of such
injunction, less any period between the termination of BLACK'S employment
hereunder and the effective date of such injunction during which BLACK proves
that he was not in violation of the provisions of this section, it being the
intention of this section to ensure that BH shall enjoy one full year of actual
freedom from competition from BLACK.
IX. INDEMNIFICATION
BLACK will indemnify and hold BH harmless from any loss, liability, cost,
damage or expense which BH may sustain, including reasonable attorneys' fees
incurred by BH, arising out of, related to or due to: (i) a breach by BLACK of
this Agreement, including any covenant, representation or warranty made by BLACK
in this Agreement or (ii) the non-performance by BLACK of any obligation he may
have under this Agreement.
Provided BLACK fulfills his obligations under this Agreement to BH, BH
will hold BLACK harmless from any loss, liability, cost, damage or expense which
BLACK may sustain, including reasonable attorneys' fees incurred by BLACK, as to
any claims by a third party, relating to the proper performance of his duties
for BH, under this Agreement. The foregoing shall not apply in the event any
claims by a third party arise and BLACK has been or is
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discharged for "Cause" and such discharge for "Cause" is held, at any time, in
arbitration or by a court of competence jurisdiction, to be in violation of this
Agreement.
X. SEVERABILITY
If any of the provisions of this Agreement, or the application of any term
or provision to any persons or circumstances is invalid or unenforceable to any
extent, then the remainder of this Agreement or the application of the term or
provision to persons or circumstances, other than those to which it is held
invalid or unenforceable, shall not be affected thereby and each term or
provision of this Agreement shall be valid and enforceable to the extent
permitted by law.
XI. ASSIGNMENT AND SURVIVAL
The rights and obligations of the parties created while this Agreement is
in effect shall survive after the termination of this Agreement and shall inure
to the benefit of and be binding upon the successors and assigns of each party.
BLACK may not assign this Agreement or subcontract the work under this
Agreement. BH may assign this Agreement upon written notice to BLACK.
XII. WAIVER OF BREACH
The waiver by either party of any breach of this Agreement shall not
operate as or be construed to be a waiver of any subsequent breach. No course of
dealing nor any delay on the part of either party in exercising or enforcing
their rights under this Agreement shall operate as a waiver of such rights.
XIII. ENTIRE AGREEMENT & MODIFICATION
This Agreement contains the entire Agreement of the parties and supersedes
all prior Agreements or understandings pertaining to the subject matter hereof
whether written or oral.
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BH at its sole discretion may change any portion of this Agreement,
including Attachment A, by providing 30 days prior written notice to the BLACK.
Unless such written notice otherwise states a date for the change to occur, the
change will become effective immediately on the 30th day after such notice is
given. Any change of this Agreement initiated by BH and not voluntarily accepted
by BLACK, shall be treated as a termination of BLACK for convenience and without
"Cause" by BH in accordance with the termination provisions of this Agreement.
No other modification or amendment of this Agreement shall be effective
unless in a written instrument, executed by the parties.
XIV. GOVERNING LAW AND FORUM
Irrespective of the present or future residence of either of the parties
hereto, this Agreement shall in all respects be governed by the laws of the
State of New York, without giving effect to principles of conflicts of laws. BH
and BLACK also consent to the jurisdiction of any Federal or State court located
in New York, New York, with respect to any claim or controversy arising in
connection with this Agreement, and each waives any claim of inconvenient forum
which such party may have in connection with such jurisdiction.
XV. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement or
the breach will be settled by arbitration, before three arbitrators in
accordance with the rules of the American Arbitration Association then in effect
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction. The arbitrators will be selected, by the parties,
from a panel of arbitrators/attorneys having experience with the computer/data
processing
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business. The parties agree that any arbitration shall be held in New York
County, State of New York.
The arbitrators will have no authority to award damages not measured by
the prevailing party's actual damages, and may not, in any event, make any
relief, finding or award that does not conform to the terms and conditions of
this Agreement.
Either party, before or during any arbitration, may apply to a court
having jurisdiction for a restraining order or injunction where such relief is
necessary to protect its interests.
Neither party nor the arbitrators may disclose the existence or results of
any arbitration hereunder, without the express prior written consent of both
parties.
Prior to initiation of arbitration, the aggrieved party will give the
other party written notice, describing the claim and amount as to which it
intends to initiate arbitration.
XVI. EQUITABLE RELIEF
The services to be rendered by BLACK hereunder are of a special character
which gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law. Furthermore, a breach by
the BLACK of any of the provisions contained herein, including, but not limited
to, the provisions relating to confidentiality, noninterference and
non-competition of this Agreement, will cause the BH irreparable injury and
harm. BLACK expressly agrees that, notwithstanding anything otherwise contained
in this agreement to the contrary, BH shall be entitled to injunctive or other
equitable relief to prevent the BLACK'S breach or anticipated breach of this
Agreement, including, but not limited to, BLACK'S breach of the provisions
contained in the provisions of this Agreement relating to confidentiality,
non-interference and non-competition. Resort to such equitable relief, however,
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shall not be construed to be a waiver of any other rights or remedies which the
BH may have for damages or otherwise.
XVII. NOTICES
Any notices or other communication required or permitted hereunder shall
be sufficiently given if sent by (i) certified or registered mail, postage
prepaid, return receipt requested, (ii) overnight delivery with confirmation of
delivery or (iii) facsimile transmission with an original mailed by first class
mail, postage prepaid, addressed as follows:
To BH: President, BoxHill Systems Corp.,
000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000
To BLACK: 0000 XxXxxx Xx., Xxxxxxxxx, XX 00000
or in each case to such other address as shall have last been furnished by like
notice. If mailing by registered or certified mail is impossible due to an
absence of postal service, notice shall be in writing and personally delivered
to the aforesaid address. Each notice or communication shall be deemed to have
been given as of the date so mailed or delivered as the case may be; provided,
however that any notice sent by facsimile shall be deemed to have been given as
of the date sent by facsimile if a copy of such notice is also mailed by first
class mail on the date sent by facsimile, if the date of mailing is not the same
as the date of sending by facsimile; then the date of mailing by first class
mail shall e deemed to be the date upon which notice given.
XVIII. SEPARATE COUNSEL
BLACK acknowledges he has had the opportunity to retain and consult with
separate counsel of his own selection acting on his behalf in connection with he
negotiation, execution and consummation of this Agreement, and covenants that
he, alone shall be liable and
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responsible for (and shall not look to the employer in connection with) the fees
and expenses of such separate counsel.
XIX. EFFECT
The parties agree to execute any and all such further instruments and
documents, and to take any and all such further actions which are reasonably
required to effectuate this Agreement and the intents and purposes hereof.
XX. BINDING AGREEMENT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, personal
representatives, successors and assigns.
XXI. COUNTERPARTS
This Agreement may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
XXII. NON-DISCLOSURE
BLACK shall keep confidential and shall not disclose the contents of this
Agreement, including, Attachment A to any other party.
BLACK ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS HIS OBLIGATIONS UNDER THIS AGREEMENT.
BOXHILL SYSTEMS CORP. XXXXXX XXXXX
Signature: /s/ Xxx Xxxxxxxx Signature: /s/ Xxxxxx Xxxxx
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Name: Xxx Xxxxxxxx Date:
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Title: President
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Date:____________________________
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ATTACHMENT A
COMPENSATION PLAN
XXXXXX XXXXX - CHIEF EXECUTIVE OFFICER ("CEO")
COMPENSATION
Salary
Bi-weekly $10,576.92
Commissions
Not Applicable
Bonus
1. 0.05% of the net revenue of BH, on an annual basis plus 0.5% of the net
revenue of BH in excess of $100,000,000.00, on an annual basis.
AND
2. 1.12% of the net pre-tax profits of BH, on an annual basis plus 4.0% of
the net pre-tax profits of BH, above $20,000,000.00 on an annual basis.
Net revenue and net pre-tax profits of BH are computed in accordance with
generally accepted accounting principles, constantly applied, for tax purposes,
excluding Officers' bonuses but including Officers' base salary, including that
of BLACK. Such bonus or payment thereof to BLACK as to net revenue or net
profits of BH is to be determined solely by the accountants of BH. In the event
BLACK disagrees with such determination, BLACK will notify BH within 15 days
after receipt of notification from BH of such determination of the accountants
for BH.
For purposes of this bonus provision, net revenue and net pre-tax profits
are computed on
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a accrual basis, consistently applying generally accepted accounting principles.
The annual bonus calculations are to be made as of the close of each
calendar year.
Annual bonus payments, based on the annual bonus calculations, are to be
made by BH to BLACK within 60 days after the close of BH'S calendar year based
upon such annual bonus calculations less any quarterly bonus advances (described
below) paid by BH to BLACK during the calendar year as to which the annual bonus
payments are based.
In the event that such quarterly bonus advances paid by BH to BLACK,
during a calendar year, exceed the annual bonus calculations, the deficit shall
carry forward to reduce any subsequent calendar years' bonus payable by BH to
BLACK and shall be recoverable by BH from BLACK.
Quarterly estimates, on a cumulative basis, of such annual bonus payments,
will be computed by BH, as of the close of each BH calendar quarter and a
quarterly bonus advance, based on such cumulative quarterly estimates, will be
paid by BH to BLACK, within 30 days after the close of BH'S calendar quarter.
BLACK must be in the employ of BH and this Agreement must be in effect to
entitle BLACK to any bonus.
Stock Options
BLACK may be offered by BH, at the sole option of the current Board of
Directors of BH and Shareholders of BH, stock or stock options relating to the
common stock of BH, in such amounts and at such prices as may be determined by
BH, in its sole discretion, but in no event in the aggregate more than that
which would represent 5% of the issued and outstanding stock of BH. In the event
BLACK accepts an offer from BH regarding such stock or stock options,
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BLACK acknowledges and agrees that such stock or stock option will be subject to
terms and conditions regarding acquisition, holding and disposition that will be
established solely by BH as it may determine, and the execution by BLACK of any
option agreement, subscription agreement or Shareholders' agreement required by
BH, as it may determine, in its sole discretion. The Company makes no commitment
that any stock or stock options will be issued to BLACK at any time.
Relocation & Relocation Expenses
BLACK will relocate to the New York, N.Y. Metropolitan area prior to July
1, 1995. Relocation expenses of BLACK up to $100,000.00 will be reimbursed by
BH. All such relocation expenses are to be documented. Any portion of the
$100,000.00 not expensed by BLACK shall be paid by BH to BLACK, as a stipend to
BLACK, upon the submission to BH by BLACK of a final expense report relating to
his relocation. BLACK shall be responsible for all taxes associated with such
relocation expense reimbursement or payment of stipend.
Other Expenses
An expense reimbursement account will be maintained by BH for BLACK,
pursuant to which, BLACK shall be reimbursed by BH, for all reasonable and
customary out of pocket expenses, not to exceed $500.00 per week, actually
incurred by BLACK, on behalf of BH, solely in the conduct of BH's business,
based upon full and complete itemized vouchers, submitted promptly by BLACK in
accordance with BH's policies and procedures. Any expenses in excess of $500.00
per week, require prior written approval of the Management Committee of BH and
shall not be reimbursed to BLACK by BH without such prior approval.
Fringe Benefits
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BLACK shall be entitled to those fringe benefits such as medical and
dental benefits, which are provided to all BH full time employees, as may be
established and changed from time to time by BH and as are established by the
employee benefits handbook published by BH. Holidays, sick days and personal
days applicable to BLACK shall be in accordance with the employee benefits
handbook published by BH. BLACK shall be entitled to paid vacation of 3 weeks,
per full calendar year of work. Vacation time will accrue in one year and be
taken in the subsequent year.
Life Insurance
BH may, in its discretion and at its expense, at any time after the
execution of this Agreement, apply for and procure as owner and for its own
benefit, insurance on the life of the BLACK, in such amounts and in such form or
forms as the BH may choose. BLACK shall have no interest whatsoever in any such
policy or policies, but he shall, at the request o the BH, submit to such
medical or other examinations, supply such information and execute such
documents, as may be required by BH or the insurance company or companies to
whom the BH has applied for such insurance. The results of any such medical
examination may not be used by the BH as grounds for termination of the BLACK.
Total Disability
For purposes of this Agreement, the term "Total Disability" shall mean the
failure or inability of BLACK for reasons of health, to perform his usual and
customary duties on behalf of the BH in the usual and customary manner for a
total of more than ninety (90) consecutive business days (excluding Saturdays,
Sundays and Holidays, as specified below) out of any consecutive period of three
hundred sixty-five (365) days, including Saturdays, Sundays and
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Holidays. The term "Holidays" shall include New Year's Day, President's
Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas
Day, and any other weekday on which Federal and/or State banks are closed in the
State of New York. In such event, Total Disability shall be deemed to have
occurred on the ninetieth (90th) such business day, that BLACK shall fail or be
unable to perform his usual and customary duties on behalf of the BH in the
usual and customary manner. Until the date upon which Total Disability shall
have occurred, BLACK'S compensation and status as an employee under this
Agreement shall continue. If the parties are unable to agree with respect to any
question with respect to Total Disability, including, but not limited to, the
following: (i) whether BLACK is Totally Disabled, (ii) the date upon which the
disability of BLACK commenced or (iii) the date upon which either the disability
of BLACK terminated or the Total Disability occurred, then such dispute shall be
determined by arbitration in accordance with this Agreement. Upon an occurrence
of Total Disability, this Agreement shall be terminated and shall be deemed
terminated, as if BLACK had terminated for convenience. BLACK may supplement, at
his option and expense, any standard short-term or long-term disability
insurance coverage, which may be provided by BH with his own short-term or
long-term disability insurance coverage.
BOXHILL SYSTEMS CORP. XXXXXX XXXXX
Signature: /s/ Xxx Xxxxxxxx Signature: /s/ Xxxxxx Xxxxx
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Name: Xxx Xxxxxxxx Date: 5/31/95
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Title: President
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Date:
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CONSENT AGREEMENT
BETWEEN
BOARD OF DIRECTORS OF BOXHILL SYSTEMS CORPORATION
AND
XXXXXX XXXXX
Pursuant to the requirements of Section III of the Compensation Plan and
Agreement dated 31 May 1995 between the Board of Directors of BoxHill Systems
corp. (the "Board") and Xxxxxx Xxxxx ("Black"), the Board consents that Black
may hold the non-employee position of Director of the Board of Tekelec, a
California Corporation located at 00000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx
00000.
Dated: 31 day of May, 1995
/s/ Xxx Xxxxxxxx
------------------------------------
Xxx Xxxxxxxx, Director
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx, Director
/s/ Xxxx X. Xxxx
------------------------------------
Xxxx X. Xxxx, Director
/s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
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