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ECCS, INC.
SENIOR STAFF CHANGE IN CONTROL SEVERANCE
AND INCENTIVE COMPENSATION PAY AGREEMENT
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THIS SENIOR STAFF CHANGE IN CONTROL SEVERANCE AND INCENTIVE COMPENSATION
PAY AGREEMENT (the "CICSIPA") is made as of the 28th day of October, 1997, by
and between ECCS, Inc., a New Jersey corporation (the "Company"), and XXXXX X.
XXXXXXX, an employee of the Company (the "Employee"), and supersedes all such
CICSIPA agreements.
R e c i t a l s:
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1. The Company is a New Jersey corporation engaged in developing and
manufacturing intelligent mass storage subsystems and reselling complementary
products procured from third parties and providing related professional services
into the non-mainframe, non-mini computer open systems market. The Employee is
currently employed by the Company as VICE PRESIDENT FINANCE AND ADMINISTRATION.
2. The Company and the Employee desire to provide for the payment of
severance pay to the Employee in the event of the termination of his or her
employment following a change of control or severance from the Company, on the
terms and conditions set forth in this Agreement:
Agreement:
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In consideration of the premises and the mutual covenants and conditions
set forth herein, the Company and the Employee agree as follows:
Section 1. Operation of Agreement. This Agreement shall be effective
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immediately upon its execution, but the provisions hereof shall not be operative
unless and until a "Change in Control" (as such term is defined in Section 2)
has occurred or severance for other reasons as defined in Section 4. has
occurred.
Section 2. Change in Control. The term "Change in Control" as used in this
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Agreement shall mean the first to occur of any of the following:
(a) The effective date or date of consummation of any transaction or series
of transactions (other than a transaction to which only the Company and
one or more of its subsidiaries are parties) pursuant to which the
Company:
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CHANGE IN CONTROL SEVERANCE PAY AGREEMENT
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(i) becomes a subsidiary of another corporation, or
(ii) is merged or consolidated with or into another corporation, or
(iii) engages in an exchange of shares with another corporation, or
(iv) transfers, sells or otherwise disposes of all or substantially all its
assets to a single purchaser (other than the Employee), or a group of
purchasers (none of whom is the Employee);
provided, however, that this Subsection (a) shall not be applicable to a
transaction or series of transactions in which a majority of the capital
stock of the other corporation, following such transaction or series of
transactions, is owned or controlled by the holders of a majority of the
Company's outstanding capital stock immediately before such sale, transfer
or disposition, unless the Chief Executive Officer of such other
corporation becomes the Chief Executive Officer of the Company;
(b) The date upon which any person, (other than the Employee), group of
associated persons acting in concert (none of whom is the Employee) or
corporation becomes a direct or indirect beneficial owner of shares of
stock of the Company representing an aggregate of more than fifty percent
(50%) of the votes then entitled to be cast at an election of directors of
the Company; provided however, that this Subsection (b) shall not be
applicable to a transaction or series of transactions in which the entity
acquiring such ownership in excess of fifty percent (50%) is a person or
entity who is eligible, pursuant to Rule 13d-1(b) under the Securities
Exchange Act of 1934, as amended, to file a statement on Schedule 13G with
respect to its beneficial ownership of the Company's capital stock, whether
or not such person or entity shall have filed a schedule 13G, unless such
person or entity shall have filed a Schedule 13D with respect to beneficial
ownership of fifteen (15%) or more of the Company's capital stock; and
provided, further, that the acquisition of shares in a bona fide public
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offering or private placement of securities by an investor who is acquiring
such shares for passive investment purposes only shall not constitute a
"Change in Control."
(c) The date upon which the persons who were members of the Board of Directors
of the Company as of October 28, 1997 (the Original Directors) cease to
constitute a majority of the Board of Directors; provided, however, that
any new Director whose nomination or selection has been approved by the
affirmative vote of at least five of the Original Directors then in office
shall also be deemed an Original Director.
Section 3. Severance Pay Upon Termination by Company Without cause or By
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Employee for Cause. If, during the one year period immediately following a
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Change in Control, the Employee's employment with the Company is terminated
either:
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(a) By the Company for no reason or for any reason other than the dishonest or
willful misconduct of the Employee, including, but not limited to, theft of
or other unauthorized personal use of the Employer's funds or other
property; or
(b) Due to the death or disability of the Employee; or
(c) By the Employee as a result of, or within 30 days of the following:
(i) a reduction in his or her rate of regular compensation from the
Company to an amount below the rate of his or her regular compensation
as in effect immediately prior to the Change in Control;
(ii) a requirement that the Employee relocate to a location more than
thirty-five (35) miles from the Employee's office location with the
Company immediately prior to the Change in Control;
(iii)a change in duties or job responsibilities from those as in effect
immediately prior to the Change in Control, which change results in
the diminution of the Employee's status, authority and duties, except
for such subordination in duties or job responsibilities as may
normally be required due to the Company's change from an independent
business entity to being a subsidiary or division of another corporate
entity;
then the Company shall pay the Employee, within ten (10) days after the
effective date of his or her termination, an amount equal to the sum of 12
twelve times (x) the rate of his or her monthly regular compensation as in
effect immediately prior to the Change in Control, (y) an amount equal to the
value of his or her accrued vacation time up to the maximum of such accrued
vacation time then permitted by Company policy, and (z) if such Change in
Control occurs prior to the payment of executive incentive bonuses for the year
ended December 31, 1997 ("1997") or December 31, 1998, the Company shall
calculate the financial results for year on a pro forma basis as set forth in
the next sentence and, if a bonus would be payable on the basis of such pro
forma financial results, the Employee shall be entitled to a pro rata share of
such incentive bonus, if any, calculated as set forth in next sentence. For the
purposes of computing any such executive incentive bonus, the executive
incentive bonus shall be calculated by taking the revenues and the pre-tax
earnings for the last full three months before such termination and dividing
them by three (3) and multiplying the result by the number of months then
remaining in 1997 and adding the respective results to year-to-date revenues and
pre-tax earnings through the end of the month prior to termination, and then
dividing such by the fraction of the fiscal year from its beginning to the date
of termination. The Company may withhold from any such severance compensation
any federal, state, city, county or other taxes.
The Company shall also pay the Employee insurance and other similar employee
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benefits until the sooner to occur of twelve months following termination of his
or her employment or the date on which the Employee begins employment with an
employer other than the Company. In the event that the Employee's continued
participation in any such plans for such period is not possible under the
general terms and provisions thereof, the Company shall pay to the Employee
benefits which are substantially similar in content and value to those which the
Employee was entitled under such plans or programs for such period.
All severance payments are subject to individual signing a non-compete
agreement, the term of which to be commensurate with the length of the severance
payments.
Section 4. No Severance Pay Upon Any Other Termination.
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a) In the event the employee is dismissed from the business through no fault of
his/her own, the following will apply. This would apply for purposes of staff
reductions or layoffs as a result of diminished financial conditions or
prospects of the Company. The Senior staff member will be entitled to be paid at
the Company's option, within ten (10) days after the effective date of his/her
termination, (1) regular payroll payments of an amount equal to the sum of six
(6) times the rate of his/her regular monthly compensation OR (2) an amount
equal to the sum of six (6) times the rate of his/her monthly regular
compensation as in effect immediately prior to the dismissal. Standard benefits
apply as covered in the ECCS Employee Policies and Procedures Manual.
b) Should the Senior Staff member be dismissed for documented performance
related reasons, the Company will pay the Employee at its option either (1) the
full sum of three (3) times the rate of his/her regular monthly compensation
within ten (10) days after termination OR (2) regular payroll payments of an
amount equal to the sum of three (3) times the rate of his/her regular monthly
compensation as in effect immediately prior to the termination and an amount
equal to the value of his/her accrued vacation time up to the maximum of such
accrued vacation time permitted by Company policy. Standard benefits apply as
covered in the ECCS Policies and Procedures Manual.
c) Under no circumstance of any kind will the Company offer severance if the
employee has been dishonest or demonstrated willful misconduct on the part of
the Employee, including but not limited to theft or other unauthorized personal
use of the Company's funds or other property, caused harm or been in violation
of the Company's then current Policies and Procedures manual.
Section 5. Incentive Compensation if Employee Remains with the Company
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Until a Change in Control. If the Employee remains employed by the Company until
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a Change in Control, then in all events, the Employee shall receive from the
Company within ten (10) days after the date of the Change in Control a special
incentive bonus equal to either (i) two (2) times the Employee's base monthly
compensation in effect at the time, if the consideration paid, net of incentive
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compensation paid or to be paid to Senior Staff under the terms of a CICSIPA,
for the Change in Control is less than $6.00 per share, or (ii) four (4) times
the Employee's base monthly compensation in effect at the time, if the
consideration paid, net of incentive compensation paid or to be paid to Senior
Staff under the terms of a CICSIPA, for the Change in Control is more than $6.00
per share.
Should such Change in Control occur without the acquiring party or parties
acquiring 100% of the shares of common stock of ECCS or if an asset purchase
less than 100% of the assets of ECCS for the purposes of this Section 5, the
consideration received will be grossed up to an amount equal to that which would
have resulted had 100% been acquired at the same payment rate.
Section 6. Entire Obligation. Payment to the Employee pursuant to Sections
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3, 4 or 5 of this Agreement shall constitute the entire obligation of the
Company to the Employee and full settlement of any claim under law or equity
that the Employee might otherwise assert against the Company, or any of its
employees, officers or directors on account of the Employee's termination.
Payments hereunder shall supersede and extinguish any obligation the Company may
have with respect to the Employee pursuant to any employment contract or other
agreement for the payment of employment compensation, whether such agreement(s)
are in existence now or come into existence hereafter.
Section 7. No Obligation to Continue Employment. This Agreement does not
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create any obligation on the part of the Company to continue to employ the
Employee following a Change in Control or in the absence of a Change in Control.
Section 8. Term of Agreement. This Agreement shall terminate and no longer
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be in effect on the earlier of February 1, 1998, or the date upon which the
Employee ceases to be an employee of the Company unless a Change in Control has
occurred prior to or on such date. If a Change in Control has occurred, this
Agreement shall continue to be effective until the date one year following the
Change in Control.
Section 9. Severability. Should any clause, portion or section of this
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Agreement be unenforceable or invalid for any reason, such unenforceability or
invalidity shall not affect the enforceability or validity of the remainder of
the Agreement.
Section 10. Assignment: Successors in Interest. This Agreement, being
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personal to the Employee, may not be assigned by him or her. The terms and
conditions of this Agreement shall enure to the benefit of and be binding upon
the successors and assigns of the Company, and the heirs, executors and personal
representatives of the Employee.
Section 11. Waiver. Failure to insist upon strict compliance with any of
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the terms, covenants or conditions of this Agreement shall not be deemed a
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waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.
Section 12. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New Jersey applicable in
the case of agreements made and to be performed entirely within such State.
Section 13. Arbitration. Any controversy or claim arising out of or in
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connection with this Agreement shall be settled by arbitration in accordance
with the rules of the American Arbitration Association then in effect in the
State of New Jersey and judgment upon such award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The arbitration shall be
held in the State of New Jersey. The arbitration award shall include attorneys'
fees and costs to the prevailing party.
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IN WITNESS WHEREOF, this Agreement has been executed by the undersigned as of
the date first above written.
ECCS, Inc.
By: /s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Chief Executive Officer
ACCEPTED: /s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Vice President Finance and
Administration
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