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EXHIBIT 10.1 to Third Quarter Form 10-Q
COMPENSATION AGREEMENT
Agreement entered into this 8th day of July, 1997 by and between ANDATACO, doing
business at 00000 Xxxx Xxx Xxxx, Xxx Xxxxx, XX 00000, and Xxxxx X. Xxxx,
hereinafter referred to as the Vice President of Worls Wide Sales or "Xxxx".
WHEREAS, the parties hereto are desirous of entering into an agreement setting
forth the terms and conditions of compensation and commemorating the same in
writing in connection with the development of Andataco's Sales;
Now Therefore, for valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
EMPLOYMENT AND DUTIES:
ANDATACO hereby employs Xxxx as the full time Vice President of World Wide
Sales, exempt from all applicable overtime requirements, to sell and promote the
sale of Andataco's Products.
TERRITORY AND CUSTOMERS:
Xxxx shall perform his/her aforementioned duties within the following territory,
to wit: The World.
QUOTA
Xxxx will be tasked with the production of a cumulative minimum contribution
margin ("CMCM") for all world wide sales personnel for whom he is responsible.
The CMCM for the remainder of the Company's fiscal year ending October 31, 1997
attributable to Xxxx shall be as mutually agreed not later than August 1, 1997.
The CMCM for the ensuing fiscal years shall be as approved by the Company's
Board of Directors not later than the end of the first calendar month of said
fiscal period.
COMPENSATION:
1. Xxxx shall be paid a salary of $12,500.00 per month pursuant to ANDATACO's
normal payroll practices.
2. Xxxx will be eligible for ongoing bonus payments as per the bonus plan
attached for the fourth quarter of FY 1997. These payments are based on the
achievement of budgeted contribution margins.
3. All compensation hereunder shall be subject to Xxxx'x indebtedness to
ANDATACO arising under the following circumstances, to wit:
a. purchase of evaluation equipment.
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b. conditional purchase orders managed by Xxxx.
Provided, however, that such indebtedness must be specifically identified as
being attributable to Xxxx prior to the time it is satistified against
compensation.
4. Compensation shall be subject to deductions attributable to Federal and
State taxes, and applicable insurance premiums.
5. ANDATACO shall pay, each month, a car allowance of $400.00. The Company
shall pay for all customary and reasonable cellular expenses and business
expenses, paid in accordance with the Company's normal payroll policies.
CONDITIONS OF SALE AND ACCEPTANCE OF ORDERS:
ANDATACO expressly reserves the right to adjust prices, set conditions of sales,
and accept or reject orders.
MERGER:
This agreement shall supersede all prior commission agreements. However, all
agreements between the parties hereto relative to confidentiality, proprietary
information, employment, and the "Plan", shall specifically survive.
TERM OF AGREEMENT:
This agreement shall be automatically renewed on the anniversary date hereof for
a like period unless otherwise terminated as hereinafter set forth.
TERMINATION:
Either party may terminate this agreement by providing the other written notice
thereof. In the event of such termination:
1. Xxxx shall immediately provide ANDATACO with a detailed written status
report of all customers, prospects, pending activities, and account
contacts.
2. Xxxx shall immediately return all property belonging to ANDATACO, such as
equipment, literature, customer files and correspondence, to the President.
3. Commissions earned, but unpaid hereunder, shall be paid at 100% commission
rate, less any indebtedness. Commissions earned subsequent to termination
shall be paid at 50% of the normal rate. Such ratable payments contemplate
the intervention of another Xxxx in order to conclude the subject matter
with minimal business interruption.
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NOTICE:
All notices hereunder shall be in writing and served in person or by certified
mail at either parties principal place of business or residence. The postmark
shall be considered as the date of notice.
ENTIRE AGREEMENT:
This agreement represents the entire understanding between the parties hereto,
except as hereinbefore set forth, and shall inure to the benefit of their
successors and assigns. Any modification must be in writing and executed by both
parties. Nothing herein shall be construed as enabling Xxxx to bind ANDATACO.
SEVERABILITY:
Each term, condition, covenant or provision of this Agreement shall be viewed as
separate and distinct, and in the event that any such term, covenant or
provision shall be held by a court of competent jurisdiction to be invalid, the
remaining provisions shall continue in full force and effect.
WAIVER:
A waiver by either party of a breach of provision or provisions of this
agreement shall not constitute a general waiver, or prejudice the other party's
right otherwise to demand strict compliance with that provision or any other
provisions in this Agreement.
INCONSISTENCY:
The terms of this agreement shall prevail in the event of a conflict with any
existing agreements or plans between the parties hereto.
CONSTRUCTION OF AGREEMENT:
This Agreement shall be construed according to the laws of the State of
California.
DISPUTES AND ARBITRATION:
The parties agree that any disputes or questions arising hereunder, including
the construction or application of this Agreement, shall be settled by
arbitration in accordance with the rules of the American Arbitration Association
then in force. If the parties cannot agree upon an arbitrator with ten (10) days
after demand of either party, either or both parties may request the American
Arbitration Association to name a panel of five (5) arbitrators. Andataco shall
strike the names of two (2) on this list; the Xxxx shall then strike two (2)
names; and the remaining name shall be the arbitrator. The decision of the
arbitrator shall be final and binding upon the parties, both as to law and to
fact, and shall not be appealable to any court in any jurisdiction. The expenses
of the arbitrator shall be shared equally by the parties, unless the arbitrator
determines that the expenses shall be otherwise assessed.
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IN WITNESS WHEREOF, the parties have hereunto executed this agreement the day
and year first above written.
ANDATACO: XXXX:
by: /s/ W. Xxxxx Xxxxx by:/s/ Xxxxx X. Xxxx
dated: 7/9/97 dated: 7/10/97
