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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
Employment Agreement dated as of July 3, 1997 between BOX HILL SYSTEMS
CORP., a New York corporation (the "Company") and Xxxx X. Xxxx ("Executive").
WITNESSETH:
WHEREAS, the Company desires to continue the employment of the Executive
and the Executive wishes to continue to be employed by the Company on the terms
and conditions hereinafter contained;
NOW, THEREFORE, it is hereby agreed as follows:
1. Employment. The Company hereby employs Executive as Vice
President of the Company for the Term as defined in paragraph 2 to perform the
duties described in Section 3 hereof.
2. Term. Unless terminated earlier pursuant to the provisions of
Section 7 or 8 hereof, the term of employment of Executive covered by this
Agreement shall commence on the date of the closing of the first offering of
securities of the Company which is registered under the Securities Act of 1933,
as amended and shall continue through December 31, 2000 (the "Term").
3. Duties. Executive shall devote substantially all his time to the
affairs and business of the Company for which he will serve as Vice President
and perform the duties designated by the Board of Directors of the Company.
Executive shall use his best efforts to promote the interests and welfare of the
Company.
4. Salary; Bonus. (a) As his compensation hereunder, Executive shall
be paid by the Company a base salary of $350,000 per annum during the first 12
month period of the Term, with the compensation for each of the remaining 12
month periods to be determined by the Board of Directors but not to be less than
his base compensation for the preceding twelve month period adjusted for the
increase, if any, in the Consumer Price Index for the last month of the
immediately preceding twelve month period. For this purpose, the Consumer Price
Index shall mean the Consumer Price Index U.S. City Average, All Items Figure
for Urban Wage Earners and Clerical Workers, published by the Bureau of Labor
Statistics of the U.S. Department of Labor, or any comparable Consumer Price
Index which shall be subsequently published to supersede such designated
Consumer Price Index. The base compensation shall be payable in equal biweekly
installments.
(b) The Company shall pay Executive a bonus within
30 days following the completion of the statement of income of the Company and
its subsidiaries for the most recently completed fiscal year ending during the
Term as audited by the independent public accounting firm
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selected by the Company to audit the consolidated financial statements of the
Company and its subsidiaries equal to 1.5% of the amount by which the Pre-tax
Income for that year exceeds $20,000,000. Pre-tax Income shall mean the income
of the Company and its subsidiaries before provision for applicable federal,
state and local income taxes, all as determined in accordance with generally
accepted accounting principles.
5. Benefits. The Company shall be obligated or continue to provide,
pay or secure, at its own expense for Executive while employed by the Company
pursuant to the Agreement medical, health, disability and business accident
insurance coverage in the forms provided to him during the twelve months ended
June 30, 1997. Executive shall be entitled to a full-paid four-week vacation
during each year of his employment.
6. Expenses. The Company shall pay or reimburse Executive for all
other expenses normally reimbursed by the Company and reasonably incurred by him
in furtherance of his duties hereunder including, without limitation, travel,
meals, hotel accommodations and the like upon submission by him of vouchers or
an itemized list thereof prepared in compliance with such rules relating thereto
as the Board may, from time to time, adopt and as may be required in order to
permit such payments as proper deductions to the Company under the Internal
Revenue Code, as amended from time to time, and the rules and regulations
adopted pursuant thereto now or hereafter in effect.
7. Disability. In the event of Executive's disability (as
hereinafter defined) for ninety (90) consecutive calendar days or in the
aggregate one hundred and twenty (120) calendar days during any twelve (12)
months of the Term, the Company shall have the right, by written notice to
Executive, to terminate this Agreement as of the date of such notice.
"Disability" for the purposes of this Agreement shall mean Executive's physical
or mental disability so as to render Executive incapable of carrying out
Executive's essential duties under this Agreement.
8. Termination. The Company shall have the right to discharge
Executive and terminate this Agreement for Cause (as hereinafter defined) by
written notice to Executive and this Agreement shall be deemed terminated as of
the date of such notice. For the purpose of this agreement, "Cause" shall mean
(a) conviction of a felony, (b) gross neglect or gross misconduct (including
conflict of interest) in the carrying out of Executive's duties, (c) repeated or
substantial failure, refusal or neglect to perform Executive's duties in
accordance with paragraph 3 hereof, (d) the engaging by Executive in a material
act or acts of dishonesty affecting the Company, or its subsidiaries, or (e)
drunkenness or the illegal use of drugs by Executive materially and repeatedly
interfering with performance of Executive's obligations under this Agreement. In
the event of a termination by the Company pursuant to this paragraph 8, the
Company shall not be under any further obligation to Executive hereunder except
to pay Executive, subject to the rights and remedies of the Company in the
circumstances, (i) salary and benefits accrued and payable up to the date of
such termination, and (ii) reimbursement for expenses accrued and payable under
paragraph 6 hereof through the date of termination.
9. Non-Competition.
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9.1 Subject to the Company not then being in default of its
obligations under this Agreement, Executive, for a period ending one year
following the last day of his employment as an Executive by the Company (the
"Non-competition Period"), shall not perform services or otherwise act in any
capacity (including without limitation as an employee, independent contractor,
officer, director or consultant) for, or otherwise be engaged by or have any
financial interest in or affiliation with, any individual corporation,
partnership or any other entity involved in or connected with the business in
which the Company (for purposes of Sections 9, 10 and 11, "Company" shall also
include the Company and the subsidiaries of the Company) is engaged other than
for or on behalf of the Company; provided, however, that nothing contained in
this Section 9.1 shall prevent Executive from purchasing as an investment
securities of any corporation whose securities are regularly traded on any
national securities exchange or in the over-the-counter market, provided that
the amount of such securities along with securities held at or after such
purchase by other members of his family, including his parents, siblings and
members of their families do not aggregate at least 5% of the outstanding
securities of such corporation.
9.2 During the Non-competition Period and subject to the
Company's not being in default of this Agreement, Executive shall not solicit or
induce any Executive of the Company to leave the employ of the Company.
10. Confidential Information.
10.1 Executive shall regard and preserve as confidential all
trade secrets and other proprietary information pertaining to the business of
the Company or its subsidiaries that Executive may obtain during his employment;
and, to the extent that such proprietary information shall not become public
knowledge, Executive shall not disclose to others, during his employment or
thereafter, any of such proprietary information.
10.2 Executive agrees that any inventions, copyrightable
material, secret processes, formulae, trademarks, products or improvements that
he may invent, produce, prepare, acquire or suggest during the term of this
Agreement, relating generally to any matter or thing connected in any way with
or relating to the work, products or projects carried on by Executive for the
Company shall become the absolute property of the Company; and Executive further
agrees to assign without further compensation all such inventions, copyrightable
material, trade secrets, secret processes, formulae, trademarks, products and
improvements and all rights thereto, domestic and foreign, to the Company and to
execute all documents whatsoever that may be necessary to transfer to and vest
in the Company all right, title and interest in and to such inventions,
copyrightable material, trade secrets, secret processes, formulae, trademarks,
products and improvements.
10.3 The Company shall own forever and throughout the world
(exclusively during the current and renewed or extended term of any patent
anywhere in the world and thereafter, non-exclusively) all rights of any kind or
nature now or hereafter known in and to all of the product of Executive's
services hereunder in any capacity and any and all parts thereof, including,
without limitation, patent, copyright and all other property or proprietary
rights in or to any ideas, concepts,
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designs, drawings, plans, prototypes or any other similar creative works and to
the product of any or all of such services. Executive acknowledges and agrees
that for the foregoing purposes, Executive is performing his services as the
Company's employee-for-hire. Without limiting the generality of the previous
sentence, Executive acknowledges and agrees that all memoranda, notes, records
and other documents made or compiled by Executive or made available to Executive
during the Term concerning the business of the Company, shall be the property of
the Company, and shall be delivered by Executive to the Company, upon
termination of this Agreement or at any other time at the Company's request.
11. Indemnification.
(a) The Company agrees to indemnify Executive in the event he
is made or threatened to be made a party to any action, suit or proceeding,
whether civil or criminal, and whether or not by or in the right of the Company
or any other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise, by
reason of the fact that he, his testator or intestate, is or was a director or
officer of the Company or served any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee or
officer of the Company or served any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise in any capacity at the request of the Company, against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees, actually and necessarily incurred as a result of such action,
suit or proceeding, or any appeal therein, provided that (i) no indemnification
may be made to or on his behalf if a judgment or other final adjudication
adverse to him establishes that his acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he personally gained in fact a financial profit
or other advantage to which he was not legally entitled; (ii) no indemnification
shall be required in connection with the settlement of any pending or threatened
action or proceeding, or any other disposition thereof except a final
adjudication, unless the Company has consented to such settlement or other
disposition, and (iii) the Company shall not be obligated to indemnify him if
and to the extent he is entitled to be indemnified under a policy of insurance
as such policy would apply in the absence of this Agreement.
Executive shall be paid or reimbursed by the Company reasonable
expenses, including attorneys' fees, incurred in defending any action or
proceeding, whether threatened or pending, in advance of the final disposition
thereof upon receipt of an undertaking by or on behalf of the Executive to repay
such amount to the Company to the extent, if any, he is ultimately found not to
be entitled to indemnification.
(b) The Company agrees to maintain at its expense insurance in
the principal amount of at least $20,000,000 from a reputable and financially
capable insurance company insuring the officers and directors of the Company
including the Executive against all claims, actions, judgment, fines and amounts
paid in settlement and reasonable expenses arising from their acts or omissions
as officers or directors of the Company individually or collectively, including
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claims or actions arising under the United States Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, the securities laws of
other jurisdictions or the common law other than those which arise principally
from acts or omissions by him in bad faith or which were the result of his
actions and deliberate dishonesty.
12. Remedies.
12.1 Nothing herein contained is intended to waive or diminish
any rights the Company may have at law or in equity at any time to protect and
defend its legitimate property interests including its business relationship
with third parties, the foregoing provisions being intended to be in addition to
and not in derogation or limitation of any other rights the Company may have at
law or in equity.
12.2 A breach by Executive of the provisions of Section 9.1,
9.2, 10.1, 10.2 or 10.3 of this Agreement may cause the Company irreparable
injury and damage. Executive therefore agrees that damages may be an inadequate
remedy and that the Company shall be entitled to injunctive and/or other
equitable relief to prevent any breach of such Section of this Agreement and to
secure its enforcement, without being required to provide any security or post
any bond.
13. Notices. Any notices pertaining to this Agreement if to the
Company shall be addressed to Box Hill Systems Corp., 000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and if to the Executive at ________________,
New York, New York _________. All notices shall be in writing and shall be
deemed duly given if personally delivered or sent by registered or certified
mail, overnight or express mail or by telefax. If sent by registered or
certified mail, notice shall be deemed to have been received and effective three
days after mailing; if by overnight or express mail or by telefax, notice shall
be deemed received the next business day after being sent. Any party may change
its address for notice hereunder by giving notice of such change in the manner
provided herein.
14. Entire Agreement. This Agreement contains the entire agreement
of the parties respecting the subject matter contained herein. No modification
of any provision hereof shall be effective except by a written agreement signed
by the parties hereto.
15. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
entirely made and performed therein.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties, their respective successors, heirs and assigns (where
permitted).
(c) The waiver by one party hereto of any breach by the other
(the "Breaching Party") of any provision of this Agreement shall not operate or
be construed as a waiver of any other (prior or subsequent) breach by the
Breaching Party, and waiver of a breach of a provision in one instance shall not
be deemed a waiver of a breach of such provision in any other circumstance.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the year and date first above written.
BOX HILL SYSTEMS CORP.
By:________________________________
EXECUTIVE:
___________________________________
XXXX X. XXXX
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