EXHIBIT 2(i)(1)
Deferred Compensation Agreement, effective 12/31/95
between the Registrant and Xxxxxx X. Xxxx
DEFERRED COMPENSATION AGREEMENT
THIS DEFERRED COMPENSATION AGREEMENT (the "Agreement")
is made as of this 31st day of December, 1995 by and between RAND
CAPITAL CORPORATION, a New York corporation with its principal
place of business at 0000 Xxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx,
00000, and XXXXXX X. XXXX, residing at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000.
BACKGROUND
Xxxxxx X. Xxxx ("Xxxx") is currently serving as
President and Chief Executive Officer of Rand Capital Corporation
("Rand" or the "Company") . Xxxx desires to retire as President
and Chief Executive officer effective as of December 31, 1995.
In recognition of Xxxx' contribution to the success of Rand, Rand
desires to provide Xxxx with additional compensation and benefits
upon his retirement.
TERMS
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants and agreements herein contained, and
intending to be legally bound hereby, the parties agree as
follows:
1. DEFERRED COMPENSATION.
Xxxx and the Company agree that for and in
consideration of certain services previously provided to the
Company, Rand shall pay a deferred compensation benefit to Xxxx
in the amount of Sixty Thousand and 00/100 Dollars ($60,000.00)
for the calendar year commencing January 1, 1996 and in the total
amount of Thirty-One Thousand and 00/100 Dollars ($31,000.00) for
each year thereafter until Xxxx reaches the age of 70. There
shall be no provision for any adjustment upwards by the annual
percentage increase in the Bureau of Labor Statistics-Consumer
Price Index for All Urban Consumers (CPI-U) or any other
comparable Index published by the Bureau of Labor Statistics or
other third party.
1.1 Method of Payment.
Xxxx shall be paid in equal monthly installments of
Five Thousand and 00/100 ($5,000.00) commencing January 31, 1996
through December 31, 1996, and commencing January 31, 1997 and on
the last day of each month thereafter in the amount of Two
Thousand Five Hundred Eighty-Three and 33/100 Dollars ($2,583.33)
with the final payment to be made on September 30, 1999.
2. FUNDING.
Rand shall have the option of funding this deferred
compensation payment through the purchase of insurance. Any
insurance policy or other asset acquired by Rand for the purpose
of funding this deferred compensation arrangement shall not be
deemed to be held in trust for the benefit of Xxxx or to be
collateral security for the performance of the obligations of
Rand, but shall remain a general, unpledged, and unrestricted
asset of Rand. The rights of Xxxx or any beneficiary of Xxxx
shall be those of an unsecured creditor.
3. DEATH BENEFIT.
If Xxxx dies during the term of this Agreement, but
before the payments have been made, the remaining payments shall
be paid monthly to a beneficiary selected by Xxxx. Such
beneficiary shall be selected in writing on a form approved by
Rand. If no beneficiary is selected, the remaining payment shall
be made to Xxxx' estate.
4. MEDICAL INSURANCE COVERAGE.
Notwithstanding anything contained to the contrary
herein, the Company shall provide Xxxx and his wife, or the
survivor thereof, for life, with medical insurance coverage at
least comparable to that now carried by the Company for the
benefit of Xxxx, his wife and his dependents, if any, as of the
date hereof, or, alternatively, pay the cost of a converted
policy for Xxxx and his wife; provided, however, that if such
coverage is not obtainable, the Company shall at least annually
pay to Xxxx, or his wife if he is not surviving, an amount equal
to the cost from time to time of providing medical coverage for a
full-time executive of the Company and his wife comparable to
that then carried by the Company for Xxxx and his wife
immediately prior to his retirement. However, the level of
medical insurance coverage may be adjusted to account for Xxxx;
or his wife's, eligibility for benefits under Medicare.
5. MISCELLANEOUS.
5.1 Entire Agreement, Amendments.
This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter
hereof and supersedes any and all prior agreements,
understandings and arrangements between the parties relating to
the subject matter hereof. No amendments, change, modification
or alteration of the terms and conditions hereof shall be binding
unless evidenced by a writing signed by all of the parties
hereto.
5.2 Waiver.
The failure of any party to this Agreement to exercise
or enforce any right conferred upon it hereunder shall not be
deemed to be a waiver of any such right nor operate to bar the
exercise or performance thereof at any time or times thereafter,
nor shall a waiver of any right hereunder at any given time,
including, but not limited to, rights to any payments, be deemed
a waiver thereof for any other time.
5.3 Severability.
If any provision of this Agreement is held to be
illegal, invalid or unenforceable by a court of competent
jurisdiction, the parties shall, if possible, agree on a legal,
valid and enforceable substitute provision which is as similar in
effect to the deleted provision as possible. The remaining
portion of the Agreement not declared illegal, invalid or
unenforceable shall, in any event, remain valid and effective for
the term remaining.
5.4 Assignment.
Neither party may assign any of its rights or delegate
any of its obligations hereunder without prior written consent of
the other. Subject to the foregoing, this Agreement inures to
the benefit of, and is binding upon, the successors and permitted
assigns of the parties hereto.
5.5 Notice.
All notices hereunder and designation of beneficiary,
shall be in writing, personally delivered or sent by certified
mail, return receipt requested, postage prepaid addressed to the
other party as follows:
If to Rand: Xx. Xxxxx X. Xxxx
Rand Capital Corporation
0000 Xxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
With a copy to: Xxx X. Xxxxxx, Esq. and
Xxxxxx X. Fine, Esq.
Xxxxxxx & Fine, P.C.
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
If to Xxxx: Xx. Xxxxxx X. Xxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
With a copy to: Xxxxxxx X. Xxxxx, Esq. and
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx, Xxxx, Xxxxxxx, Xxxxx
Goodyear, LLP
0000 Xxx X & X Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Either party may change its address to which notices shall be
sent by a notice sent in accordance with this selection.
Election rights or designation of beneficiary notices shall be
effective upon the Company's receipt of such notice or election.
5.6 Execution in Counterpart.
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.
5.7 Capitalized Terms; Descriptive Headings;
Interpretation.
Capitalized terms used in this Agreement shall have the
meanings given to them in the this Agreement. The recitals set
forth above are material to this Agreement and incorporated
herein by reference. The descriptive headings in this Agreement
are inserted for convenience of reference only, and are not
intended to be part of or affect the meaning or the
interpretation of this Agreement. The use of the word
"including" in this Agreement shall be by way of example rather
than by limitation.
5.8 Payment of Costs and Expenses. In the event Xxxx
and the Company shall disagree as to their respective rights and
obligations under this Agreement, and Xxxx or the Company is
successful in establishing, privately or otherwise, that his or
its position is substantially correct, or that Xxxx' or the
Company's position is substantially wrong or unreasonable, or in
the event that the disagreement is resolved by settlement, Xxxx
or the Company shall pay all costs and expenses, including
counsel fees, which the prevailing party incur in connection
therewith.
5.9 Governing Law.
This Agreement and the rights and obligations of the
parties hereunder shall in all respects be governed by the laws
of the State of New York, without giving effect to the conflicts
of law or choice of law provisions thereof.
IN WITNESS WHEREOF, the parties have executed this
Deferred Compensation Agreement as of the date first above
written.
RAND CAPITAL CORPORATION
By: s/Xxxxxx X. Xxxxxxx
____________________________
Xxxxxx X. Xxxxxxx
By: s/Xxxxxx X. Xxxx
______________________________
Xxxxxx X. Xxxx
