December 31, 1999
Ms. Carol Turchin
140 West End Ave., #29
New York, NY 10023
Dear Carol:
This letter sets forth the terms and conditions of our agreement (the
"Agreement") regarding your voluntary resignation of employment with Dot Hill
Systems Corp., (formerly Box Hill Systems Corp. (the "Company"). You and the
Company hereby agree as follows as of the date set forth above.
1. RESIGNATION. Effective October 25, 1999 (the "Separation Date"), you tendered
and the Company accepted your voluntary resignation as Executive Vice President
Sales, an employee and any and all other positions you may have held with the
Company and/or its affiliates, other than: (i) Vice Chairman of the Board of
Directors of the Company and (ii) Consultant to the Company.
2. ACCRUED SALARY AND VACATION. The Company agrees that it will pay you all
accrued salary, and all accrued and unused vacation benefits earned through the
Separation Date, if any, subject to standard payroll deductions, withholding
taxes and other obligations. You are entitled to this payment regardless of
whether or not you sign this Agreement. You will also be eligible to receive (a)
pro-rated portion of the performance bonus provided for in your employment
agreement with Company dated August 2, 1999 (with such pro-rated portion
determined by dividing the number of days from October 1, 1999 through the
Separation Date by 91), subject to and in accordance with the terms provided for
in such employment agreement.
3. EXPENSE REIMBURSEMENT. Within ninety (90) days of your execution of this
Agreement, you agree that you will submit your documented expense reimbursement
statement reflecting all business expenses you incurred prior to and including
the Separation Date, if any, for which you seek reimbursement. The Company shall
promptly reimburse such expenses pursuant to Company policy and regular business
practice.
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4. INSURANCE BENEFITS. To the extent provided by federal law or, if applicable,
state insurance laws, and by the Company's current group health insurance
policies, you will be eligible to continue your health insurance benefits at you
own expense. Later, you may be able to convert to an individual policy through
the provider of the Company's health insurance, if you wish. You will be
provided with a separate notice of your rights in this regard.
5. CONSULTING TERMS. In exchange for the promises and covenants set forth
herein, you and the Company agree that you shall serve as an outside consultant
until December 31, 2000 (the "Consulting Period") subject to the terms herein.
(a) During the Consulting Period, upon reasonable prior notice, you will be
required to provide consultation services in New York, NY to the Company on a
limited basis with respect to such matters as Chief Executive Officer of the
Company may reasonably request from time to time. You will report exclusively to
the Co- Chief Executive Officers of the Company.
(b) During the Consulting Period, as payment for your Performance of
consulting services, the Company shall pay you in monthly installments at
the rate of Twenty-Five Thousand Dollars ($25,000) per quarter. Company will
make each monthly payment within ten (10) day of your submission of an
invoice for such month of the Consulting Period.
(c) You will be entitled to expense reimbursement from the Company for
expenses incurred by you on behalf of the Company in accordance with the expense
reimbursement policies of the Company. The defense and indemnity obligations of
the Company owing to you as a member of the Board of Directors of the Company
shall similarly be applicable to you in your capacity as a Consultant to the
Company.
(d) During the Consulting Period, you will be solely responsible for all
tax returns and payments required to be filed with or made to any federal,
state, or local tax authority with respect to your performance of services and
the receipt of fees under this Agreement. The Company will regularly report
amounts paid to you by filing Form 1099-MISC with the Internal Revenue Service
as required by law. The Company will not withhold or make payments for Social
Security, make employment insurance or disability insurance contributions, or
obtain workers' compensation insurance on your behalf.
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(e) During the Consulting Period, you agree to accept exclusive liability
for complying with all applicable state and federal laws governing self-employed
individuals, including obligations such as payment of taxes, Social Security,
disability and other contributions based on fees paid to you under this
Agreement.
(f) The Consulting Period shall be renewed and extended, from year to year,
unless either party gives the other party written notice of its intention not to
renew and extend the Consulting Period, on or before October 1 of any year.
(g) The special payroll function provided by the Company for your benefit
and the benefit of your husband Benjamin Monderer, which has existed to present,
shall continue, as directed by you.
6. DIRECTOR TERMS. As of the Separation Date, you shall be Vice Chairman and a
member of the Board of Directors of the Company. You shall receive such like
compensation, expense reimbursement, perks and benefits as the other outside
directors of the Company shall receive during your tenure.
7. COMPANY PROPERTY. Upon the Separation Date, you agree to return to the
Company all Company documents, except to the extent that your retention of any
such documents is reasonably appropriate for the performance of your obligations
as Vice Chairman of the Board of Directors of the Company and Consultant to the
Company. You agree not to disclose Company Proprietary Information outside of
the Company except as directed by the Company and agree not to use such Company
Proprietary Information except for the performance of your obligations to the
Company, as Vice Chairman of the Board of Directors of the Company and
Consultant to the Company.
8. CONFIDENTIALITY AND PUBLICITY AS TO AGREEMENT. The provisions of this
Agreement shall be held in strictest confidence by you and the Company and shall
not be publicized or disclosed in any manner whatsoever, provided, that: (a) you
may disclose this Agreement, in confidence, to your immediate family; (b) the
parties may disclose this Agreement in confidence to their respective attorneys,
accountants, auditors, tax preparers, and financial advisors; (c)
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the Company may disclose this Agreement, as necessary to fulfill standard or
legally required corporate reporting or disclosure requirements; and (d) the
parties may disclose this Agreement insofar as such disclosure may be necessary
to enforce its terms or as otherwise required by law.
9. ENTIRE AGREEMENT. This Agreement constitutes the complete, final exclusive
embodiment of the entire agreement between you and the Company with regard to
the subject matter hereof. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein. It
may not be modified, except in a writing signed by you and a duly authorized
officer of the Company. Each party has carefully read this Agreement, has been
afforded the opportunity to be advised of its meaning and consequences by his or
its respective attorneys, and signed the same of his or its free will. Nothing
herein or otherwise shall diminish the Company's defense and indemnity
obligations (past, present and future) to you and the Company does hereby
reaffirm such, including, its obligation to continue to maintain appropriate
forms and levels of insurance. You shall be afforded the same form and level of
defense and indemnity, as is afforded to the other officers and directors of the
Company.
10. SUCCESSORS AND ASSIGNS. This Agreement shall bind the heirs, personal
representatives, successors, assigns, executors, and administrators of each
party, and inure to the benefit of each party, its agents, directors, officers,
employees, servants, heirs, successors and assigns.
11. APPLICABLE LAW. This Agreement shall be deemed to have been entered into and
shall be construed and enforced in accordance with the laws of the State of New
York as applied to contracts made and to be performed entirely within New York.
12. ARBITRATION. To ensure rapid and economical resolution of any disputes which
may arise under this Agreement, you and the Company agree that any and all
disputes or controversies of any nature whatsoever, arising from or regarding
the interpretation, performance, enforcement or breach of this Agreement shall
be resolved by confidential, final and binding arbitration (rather than trial by
jury or court or resolution in some other forum) to the fullest extent permitted
by law. Any arbitration proceeding pursuant to this Agreement shall be conducted
by the American Arbitration Association ("AAA") under the then existing AAA
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employment-related arbitration rules and in New York, NY. If for any reason all
or part of this arbitration provision is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other portion of this arbitration provision or any other jurisdiction, but
this provision will be enformed, construed and enforced in such jurisdiction as
if such invalid, illegal or reformed, construed and enforced in such
jurisdiction as if such invalid, illegal, or unenforceable part or parts of this
provision had never been contained herein, consistent with the general intent of
the parties insofar as possible.
13. RELEASE OF CLAIMS. Except as to those obligations and liabilities created by
this Agreement and further except as to those matters stated herein below, the
Company releases you and you release the Company, as of the Separation Date,
from any and all claims, liabilities, demands, causes of actions, costs,
expenses, attorneys' fees, damages, indemnities and obligations of every kind
and nature, in law, equity or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed, arising out of or in any way relating to
agreements, acts or conduct, at any time, prior to the Separation Date. Excluded
from your release to the Company are any matters pertaining to; (i) benefit
plans of any and all forms whether such are qualified or non-qualified, (ii)
stock, stock option or warrant ownership as to any stock of the Company, (iii)
any right, title or interest derived through your spouse in respect of his
association with the Company, and/or (iv) any right, title or interest, as to
indemnity or contribution (including , any and all insurance coverage relating
directly or indirectly thereto), which you have by operation or law, contract or
otherwise as to any matter as a result of your individual status or your status
as a representative, employee, officer and/or director of the Company: (a) in
which you are an actual or potential defendant or third party defendant
(directly or indirectly) and/or (b) the Company is an actual or potential
defendant or third party (directly or indirectly) irrespective of whether a) or
b) is in the nature of a derivative action or otherwise; including, but not
limited to certain actions by the shareholders of the Company known as Lawrence
Milman, et al. v. Box Hill Systems Corp., et al., Federal District Court,
Southern District of New York, CV98-8640.
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14. SEVERABILITY. If a court of competent jurisdiction determines that any term
or provision of this Agreement is invalid or unenforceable, in whole or in part,
then the remaining terms and provisions hereof shall be unimpaired. Such court
will have the authority to modify or replace the invalid or unenforceable term
or provisions with a valid and enforeable term or provision that most accurately
represents the parties' intention with respect to the invalid or unenforceable
term or provision.
15. COUNTERPARTS. This Agreement may be executed in one or more counterparts
(which may be delivered by facsimile), each of which shall be deemed an
original, all of which together shall constitute one and the same instrument.
16. SECTION HEADINGS. The section and paragraph headins contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Please confirm your assent to the foregoing terms and conditions of our
Agreement by signing and returning a copy of this letter to me.
Sincerely,
DOT HILL SYSTEMS CORP.
/s/ James L. Lambert /s/ Philip Black
- ----------------------------- -----------------------------
James L. Lambert Philip Black
Co-Chief Executive Officer, Co-Chief Executive Officer
President and COO
HAVING READ REVIEWED THE FOREGOING, I HEREBY AGREE AND ACCEPT THE TERMS AND
CONDITIONS OF THIS AGREEMENT AS STATED ABOVE.
Dated: June 12, 2000 /s/ Carol Turchin
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Carol Turchin
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